CRIMINAL WRIT JURISDICTION CASE NO.243 OF 2006 ---------- In the matter of an application under Article 226 of the Constitution of India ----------- Satya Narain Singh, son of Late Harihar Singh, resident of Village Maraui Tola, P.S. Roh, District Nawada ------Petitioner Versus 1. The State of Bihar. 2. Superintendent of Police, Nawada. 3. Officer Incharge, Kaukoal (Rupo) Police Station. 4. Investigating Officer, Kaukoal P.S. Case No.78/05. Respondent Ist set 5. Sunaina Devi, wife of Sri Bhola Mistry, resident of Village Pandey Gangoat, P.S. Rupo, Distt. Nawada. ------ Respondent 2nd set ----------- For the Petitioner : Mr. Bimal Kumar, Advocate For the S t a t e : Mr. Rajiv Kumar Singh, A.C. to G.A. 8 For the complainant:Mr. Siyaram Pandey, (respondent no.5) Advocate ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA ------------- Shailesh Kr. Sinha, J. Heard learned counsel for the petitioner and the respondent-State as also the learned counsel appearing for the complainant-respondent no.5. 2. The petitioner challenges the order dated 27th of September, 2005 passed by the Chief Judicial Magistrate, Nawada, as contained in Annexure 1,whereby the complaint filed by the complainant (respondent no.5), as contained in Annexure 2, was sent to the police purportedly under section 156(3) of the Code of Criminal Procedure. Consequently, the police registered First Information Report, vide Nawada Sadar Kaukoel (Rupo) Police Station Case No.78 of 2005, on 30th of November, 2005 for the alleged offences under sections 364, 302 and 201 of the Penal Code on account of alleged disappearance and killing of the son of the complainant. 3. It is submitted on behalf of the petitioner that the - 2 - complainant-respondent no.5 for the same occurrence had earlier filed a complaint case, vide Complaint Case No.529/2005, on 28.7.2005 in the court of the Chief Judicial Magistrate, Nawada, which was dismissed by order dated 21.9.2005, as contained in Annexure 7. From perusal of the said order it would appear that on the request of the complainant, the case was dismissed and no evidence was adduced and accordingly there was no occasion for issue of summons to the accused persons. It is, accordingly, submitted that having got the first complaint dismissed, it was not open for respondent no.5 to file a fresh complaint and, as such, there was no justification in law for sending the second complaint to the police for registering the First Information Report and proceeding accordingly. 4. Learned counsel appearing for the State as also the learned counsel for the complainant, on the other hand, submits that on perusal of the complaint, as contained in Annexure 2, it would appear that respondent no.5 had withdrawn the case on being misled by the accused persons to the effect that if she withdrew the case, her son would be handed over to her. It is further alleged in the complaint that on 26th of September, 2005, respondent no.5 asked the accused person, namely, Satyanarain Singh as to why he had not brought back her son, then he said that her son could not be given to her as he was no more and it was informed by him that the complaint filed by her had also been dismissed. Respondent no.5 thereafter inquired from her Lawyer and then it was detected that her case had been dismissed on 21st of September, 2005. In the above circumstances, it is submitted that the second complaint filed by respondent no.5, as contained in Annexure 2, cannot be held to be unjustified. 5. Considering the submissions of the parties and on perusal of the averments made in the writ application as also the order dated 21.9.2005, as contained in Annexure 7, and the allegations made in - 3 - the complaint, as contained in Annexure 2, it would appear that the complainant has given plausible explanations for the dismissal of the previous complaint as it appears from the allegations in the second complaint, as contained in Annexure 2, that she was not aware of the dismissal of the case by order dated 21.9.2005 since she alleged that she was informed by the accused person that if she withdrew the case, her son would be handed over to her and when on 26.9.2005 the accused said that her son was not alive and the complaint filed by her had also been dismissed, then she inquired from her Lawyer about the previous complaint and thereafter it was detected that her first complaint had been dismissed. On perusal of second complaint it appears that the complainant was not aware with regard to the dismissal of her first complaint since it has been alleged that after she was informed that her complaint had been dismissed, then only the respondent no.5 inquired from her Lawyer and thereafter she could learn that her first complaint had been dismissed. 6. In the above facts and circumstance of the case, filing of the second complaint, which was sent to the police and that gave rise to the registration of the aforesaid police case, cannot be said to be impermissible in law. 7. In view of the discussions made above, I do not find any merit in the writ application. The same is, accordingly, dismissed, but without costs. 8. The interim order passed by this Court on 7th of July, 2006 stands vacated. (Shailesh Kumar Sinha,J.) Patna High Court, The 17th of March, 2011. P.N.M. N.A.F.R.