1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 696 OF 2009 1. Sahednnisa d/o Bakruddin age 24 years, occupation Household, resident of Rasheedpura, Aurangabad. 2. Bakruddin s/o Din Mohd., age 59 years, occupation business, r/of Plot No.56 Motiwalanagar, Baijipura, Aurangabad. 3. Sarabano w/of Bakruddin Mohd., age 51 years, occup. business, r/of as above. 4. Mohd. Ayub s/o Haji Gulam Jilani,age 51 years, occup. business, r/o Azad Chowk, Kiradpura, Aurangabad. 5. Kazi Jameel Ahemad s/o Kazi Ejaz, age 30 years, occup. Kazi, r/of Shahabazar, Aurangabad. 6. Sharif Mohd. s/o Bakruddin Mohd., age 32 years, occup. business, r/o Motiwalanagar, Plot No.56, Aurangabad. 7. Mohd. Gani s/o Mohd. Bakruddin, age 22 years, occup.business, r/o as above. 2 8. Moinuddin s/o Bakruddin, Petitioners/ age 20 years, occup. busines, accused/revn. r/of as above. Petitioners. versus 1. The State of Maharashtra 2. John Paul Antony alias Jann .. Respondents/ Mohd., age 23 years, occup. Respondent service, r/of E-27, 1/2 N-5, No.2 original Cidco, Aurangabad. complainant. Shri Rajendra Deshmukh, Advocate, for the petitioners. Smt. B.R. Khekale, A.P.P. for Respondent No. 1-State. Respondent No. 2 present in person. Coram : P.R. Borkar, J. Date : February 25, 2010 ORAL JUDGMENT 01. Petitioners challenge the judgment and order passed by the learned Additional Sessions Judge-1, Aurangabad dismissing Criminal Revision No.20 of 2009 filed by present petitioners against the order dated 1.1.2009 passed by the learned 6th Judicial Magistrate, First Class, Aurangabad below Exhibit 1 in R.C.C. No.1475 of 2008, thereby issuing process against present petitioners. 3 02. Some of the facts giving rise to this writ petition are undisputed at this stage. Petitioner No.1 Sahednnisa is daughter of petitioner Nos. 2 and 3 and petitioner Nos. 4 to 8 are relatives of petitioner Nos. 1 to 3. When Petitioner No. 1 Sahednnisa was studying in final year of B.H.M.S., on 27.10.2006, she married Respondent No.2 John Paul Antony alias Jann Mohd. However, they could not carry on together. Subsequently, Respondent No. 2 filed Criminal Writ Petition No.128 of 2007 for issuance of writ of habeas corpus. In said writ petition, present Petitioner No.1 Sahednnisa appeared before this Court and she maintained that she wanted to reside with her parents and did not wish to reside with Petitioner therein (present Respondent No.2). In the circumstances, notice of writ came to be discharged. It is further not in dispute that Respondent No. 2 on 24.8.2007, filed petition in the Family Court, Aurangabad, for restitution of conjugal rights bearing Petition No. A-271/2007. Subsequently, he also filed another petition 4 No.A-315/2007 against present Petitioner Nos. 1 to 3 for perpetual injunction restraining them from performing marriage of present petitioner No.1 Sahednnisa with another person. By common judgment delivered by the Family Court on 31.8.2009, Petition No. A-271 of 2007 was allowed, whereas petition No. A-315/07 was rejected. Copies of the judgment and decree are placed on record of this proceedings. 03. Some of the allegations and contentions are disputed, such as, according to the petitioners, Respondent No. 2 had converted from Christianity to Muslim religion; that he had given talaq to petitioner No.1 in presence of Kazi and other persons, so also executed a document on the stamp paper of Rs.100/=. It is the say of present Respondent No. 2 that on 27.5.2007, petitioner No. 1 married one Mohammad Shamim. 04. On 31.1.2008, present Respondent No.2 filed complaint in the court of Chief Judicial Magistrate, Aurangabad which is registered as 5 R.C.C. No.163 of 2008 against present petitioners for having committed offence under Section 494 read with Section 34 of I.P.C. The learned Judicial Magistrate, First Class, Aurangabad recorded verification of the complainant on 15.2.2008 and on 10.4.2008 issued process against accused No.1 (present petitioner No.1) for committing offence punishable under Section 494 of I.P.C, and as against other accused persons under Section 494 read with Section 109 of I.P.C. The order of issuance of process was challenged by the present petitioners by filing Criminal Revision No.157 of 2008 in the Sessions Court. The learned Additional Sessions Judge, Aurangabad, by his common judgment delivered on 30.6.2008 decided the said Criminal Revision along with Criminal Revision No.186 of 2008. In para. 15 of his judgment, the learned Addl. Sessions Judge observed that the verification of the complainant on record was not recorded by the learned Magistrate after administering oath. Verification was written by some one and presented or tendered before the court. The learned J.M.F.C. did not 6 follow the prescribed procedure for recording verification and, therefore following order is passed. "1. Crim. Revision Petition No.157/2008 & 186/2008 are allowed. 2. The order passed by 9th J.M.F.C., Aurangabad in R.C.C. no.163/2008 dated 10/04/2008 is quashed and set aside. It may be noted that the learned 1st Additional Sessions Judge, who decided criminal revision Nos. 157 and 186 of 2008, did not remand the matter back to the learned Magistrate for recording verification of the complainant afresh. Thus, the earlier complaint was not revived. 05. Thereafter, present respondent No.2 filed fresh complaint which came to be registered as R.C.C No.1475 of 2008 with identical allegations against the petitioners. In paragraph 9 of the said complaint, the complainant made it clear that earlier he had filed same complaint which was registered as R.C.C. No.163 of 2008; the court had issued process against accused 7 (petitioners herein); the accused had challenged the said order by filing criminal revision No.157 of 2008 before the Additional Sessions Judge and the revision was allowed by quashing and setting aside the order of issuance of process passed in R.C.C. No.163 of 2008. Revision was allowed on technical ground and not on merits and, therefore, right of the complainant to file fresh complaint subsists. On the second complaint, vide order (Annexure "E-3" colly. at paperbook page 83) the learned Magistrate recorded the verification of the complainant and then he noted in his order that he had recorded verification of the complainant. He also noted that the earlier complaint was filed cognizance of which was taken, but that order was set aside by the Sessions Court and the complainant has filed the same complaint before the court. He also stated that previous order of issuance of process was quashed without touching the merits. However, as a caution, he wanted to hold enquiry under Section 202 of the Code of Criminal Procedure, 1973 before issuance of process. It appears that enquiry was held and 8 a detailed order is passed by the learned Judicial Magistrate, First Class (6th Court) on 1.1.2009 issuing process against accused No.1 (present petitioner No.1) under Section 494 of IPC and against remaining accused under Section 494 read with Section 109 of I.P.C. 06. The order passed by the learned Magistrate on 1.1.2009 in R.C.C. No.1475 of 2008, was challenged by the accused-petitioners by filing Criminal Revision No.20 of 2009 in the Sessions Court, Aurangabad, which came to be dismissed by the same Additional Sessions Judge-1 on 22.7.2009, upholding the order passed by the Magistrate. In paragraph 8 of his judgment, the learned Additional Sessions Judge observed that the only question raised before him was whether the second complaint on the same set of facts is maintainable in the facts and circumstances of the case. In para.9, he has observed thus; 9 "9................................. Thus, it is found that the previous order of issuance of process was quashed and set aside for the wrong done by the Magistrate in following the procedure. However, the course of law are meant for imparting justice between the parties. There was no fault on the part of respondent no.2, but the Magistrate had committed legal error and therefore, the order passed by him came to be quashed and set aside. The revisional Court ought to have remanded the matter back to the Magistrate directing him to comply with the Mandate of Section 200 of Cr.P.C. and thereafter decide whether process is required to (be) issued or not. In Zantye's case it has been held by Hon'ble Bombay High Court that a second complaint on the same facts can be entertained only in exceptional circumstances. Exceptional circumstance could be circumstances where previous order passed on incomplete record or on mis-understanding of the nature of the complaint. It can be entertained if previous order was manifestly absurd, unjust, or foolish. It can be entertained where new facts which would not have been brought on record with reasonable divisions. It is found from the record that the previous order passed by the Magistrate was set aside as he did not comply with the mandate of section 200 of Cr.P.C. For the wrong done by the Court a litigant should not be allowed to suffer. Hence, I am of firm opinion that the second complainant filed by respondent no.2 in the given facts and circumstances is maintainable." 10 With observations as above, the learned Additional Sessions Judge dismissed the revision petition. 07. I agree with the observations of the learned Additional Sessions Judge that while deciding earlier revision petitions, besides quashing the order of issuance of process there should also have been order to remand the matter to the Magistrate. The effect of quashing and setting aside the order of issuance of process under Section 204 of Cr.P.C., is nothing, but the dismissal of complaint under Section 203 of Cr.P.C. I also agree with the learned Sessions Judge that the litigant should not suffer for no fault on his part or for error on the part of the Court. The order of issuance of process was set aside on technical ground that the statement of the complainant was not recorded on oath as required by law. 08. Both sides have cited several authorities before this court and I may refer to the same. In the case of Pramatha Nath v. Saroj Ranjan AIR 11 1962 SC 876, in paragraphs 48 and 58 the subject is discussed. It is laid down that the order of dismissal passed under Section 203 of Cr.P.C. is, however, no bar to the entertainment of second complaint on the same facts, but it will be entertained only in exceptional circumstances e.g. where the order is passed on an incomplete record or on mis-understanding nature of the complaint or it is 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. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. In the present case, by not remanding the matter while setting aside the order of process, there was manifest miscarriage of justice and therefore the second complaint was very much tenable. 12 09. The second case relied upon by Advocate Shri R.S. Deshmukh is A.S. Gauraya vs. S.N. Thakur AIR 1986 SC. 1440, wherein complaint was dismissed for default and it is observed that the Magistrate had no inherent power to restore the case. In the circumstances, second complaint was held to be permissible as held in the case of Pramatha Nath vs. Saroj Sarkar (supra). 11. The third case which learned Advocate for the petitioners relied upon is Subhash Zantye vs. The State of Maharshtra, 2002 All MR (Cri.) 1. In paragraph 18 of the judgment, again law laid down in the case Pramatha Nath vs. Saroj Sarkar is discussed and followed. 12. The last case cited is Mahesh Chand v. B. Janardhan Reddy AIR 2003 SC 702. Respondent No.2 also relied upon the case of Mahesh Chandra and more particularly on observations in paragraphs 14, 15 and 19. In paragraph 15, it is observed that the test laid down in the case of Queen Empress vs. Dolegobind Dass is really wide enough 13 to cover the other categories mentioned in the later decisions. Whenever a Magistrate is satisfied that the previous order of dismissal was due to manifest error or has resulted in a miscarriage of justice, he can entertain a second complaint on the same allegations even though an earlier complaint was dismissed under Section 203 of the Code of Criminal Procedure. In paragraph 19, it is held that as held in Pramatha Nath (supra), second complaint could be dismissed after a decision has been given against the complainant in previous matter upon full consideration of his case. 13. In the present the case, in my opinion, the complainant-Respondent No. 2 has come to the court with full and complete disclosure of previous complaint and the result of revision filed against order of issuance of process. The order of setting aside and quashing the issuance of process in previous complaint was merely on technical ground for which Respondent No.2 cannot be blamed. It would be manifest unjust to hold 14 that his second complaint is not tenable. 14. In the facts and circumstances, this writ petition deserves to be and is accordingly dismissed at admission stage. At this stage, Respondent No.2 in person requests that the petitioners may be directed to appear in the trial court on a particular date so that the complaint which has been pending since long may proceed further. Parties before this court are therefore directed to appear in the trial court on 29.3.2010. Writ Petition disposed of. pnd/criwp696.09 (P.R.BORKAR, J.)