IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.363 of 2008 1. GUDDU 2. MD. MUNNA 3. NANHA ALL SONS OF NASIM KURAISI 4. GOLDEN SON OF LATE WASIM KURAISI 5. HASIM KURAISI, SON OF LATE KASIM KURAISI 6. TABBU KURAISI, SON OF LATE HASIM KURAISI ALL RESIDENTS OF MOHALLA-SAKUNAT KHURD P.S. BIHAR, DISTRICT-NALANDA --------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. SAKILA BANO WIFE OF MANJAR ALAM, RESIDENT OF MOHALLA-SAKUNAT KHURD, P.S. BIHAR, DISTRICT- NALANDA ------------------- OPP.PARTIES ----------- For the petitioners: M/S Pramod Kumar, and Ritesh Kumar, Advocates For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2: None. _________ O R D E R The six petitioners through this application have prayed for the quashing of the entire criminal prosecution, arising out of Complaint Case no.595 ( C) of 2007, including the order dated 28.9.2007, passed therein by Sri M.K.Rai, Judicial Magistrate, Ist Class, Nalanda at Biharsharif , whereby he has summoned the petitioners to face the trial under Section 380/34 I.P.C. It appears that on 2.8.2006, Md.Nasim who is full brother of petitioner no.5 had given a fardbeyan at about 1.00 A.M. at Biharsharif Sadar Hospital stating inter alia therein that on 1.8.2006 at about 9.45 P.M. the informant was at his house with the other family members when Manabar @ Doctor and Jhunu , both sons of - 2 - Manjar Alam had committed rape on Tabassum @ Switi , his niece , who was aged about 16 years . It is said that on hearing her cries, Nasim with other family members had gone to the back side of the house and there they saw Manabar @ Doctor and Jhunu had set her on fire and were running away. In the meanwhile, Sanjar Alam, son of Manjar Alam @ Ghaso and Manjar Alam started firing from country- made pistols and Raju and Sahnaj both sons of Manjar started brick batting from the roof of their house. The informant and others got terrified and picking up the niece brought her to their house, wherefrom she was brought to Biharsharif Hospital for treatment. It is said that the witnesses to the occurrence are the family members of the informant and a few neighbours . On the basis of the aforesaid fardbeyan of Md. Nasim, Bihar P.S. Case No.210 of 2006 under Sections 376,307/34 I.P.C. and Section 27 of Arms Act was registered against Manabar @ Doctor, Jhunu, Sanjar , Raju , Sahnaj Alam and Manjar Alam. It is said that although a large number of witnesses including eye witnesses had supported the prosecution case and the superior police officials in their supervision notes had found the case true and from the facts and materials collected during the course of investigation, the case was fully proved against all the accused persons, the accused persons by dint of money and political influence at their command managed to get a chargesheet submitted under Sections 376,302,307/34 I.P.C. and Section 27 of the Arms Act only against two of the accused persons, namely, Manabar @ Doctor and Jhunu and the remaining - 3 - four were not sent up for trial. It also transpires that the informant’s niece Tabassum @ Switi died in course of treatment. It further transpires that the learned Chief Judicial Magistrate, on perusal of the case diary and with particular reference to paragraph nos.2,8, 12 and 16 thereof came to the conclusion that a prima facie case under Sections 376, 302, 307 I.P.C. and Section 27 of the Arms Act had been made out against all the six accused persons and differing from the police report took cognizance against all the F.I.R. named accused and summoned them by order dated 17.10.2006. It further appears that in the meantime, Sakila Bano wife of Manjar Alam had filed Complaint Case no.787 ( C) of 2006 on 4.8.2006 against the aforesaid six petitioners with respect to an occurrence , which had taken place on 31.7.2006 at about 8 P.M. stating inter alia therein that when her husband and son had gone out to Patna for the treatment of her husband and she was all alone in her house besides her daughter-in-law Bobby , all the petitioners armed with country made fire-arms , entered the complainant’s house and assaulted her and her daughter-in-law with fists and kicks, looted articles from the house and when the complainant and her daughter-in- law attempted to raise alarm , Guddu and Munna pointing out their pistols at them forbade them from raising alarm, failing which they would be shot dead. A list of the articles said to have been looted away has been furnished in the complaint and the occurrence is said to have been seen by the witnesses and when in the morning the complainant went to the Police Station , she was informed by the - 4 - Sub-Inspector that he would come to the place of occurrence and would take appropriate action but , in fact, neither did the police arrive nor was any action taken, which made her apprehend that the police had entered into collusion with the accused persons. It further appears that the complaint was transferred to the court of Judicial Magistrate, where inquiry under Section 202 Cr.P.C. done but no witness or evidence of any sort was produced by the complainant and notwithstanding information to the lawyer of the complainant to produce witnesses , no action was taken and eventually the court having waited sufficiently for the complainant to produce her witnesses, ultimately, decided to hear and dispose of the matter and by order dated 10.10.2006 , the learned Magistrate after taking into account all the facts and materials on the record, including the allegations made in the petition of complaint and the statement of the complainant on solemn affirmation came to the conclusion that no prima facie case for prosecuting the petitioners was made out and dismissed the complaint under Section 203 Cr.P.C. It appears that after the complaint had been dismissed on 10.10.2006, Opp.Party no.2 filed another complaint case, bearing no.595 of 2005 against the petitioners for the same occurrence that had taken place on 31.7.2006 at 8 P.M., for which Complaint Case no.787 (C) of 2006 had already been filed and dismissed on merit and also by misrepresenting fact inasmuch as she has stated that her earlier complaint petition was dismissed for non- prosecution /default. At the enquiry under Section 202 Cr.P.C. which had followed two witnesses - 5 - were examined apart from the statements of the complainant on solemn affirmation and the learned Magistrate without taking into account that the earlier petition of complaint being Complaint Case no.787 ( C) of 2006 on the same set of allegations and for the same occurrence had already been dismissed on merit on 10.10.2006 summoning the petitioners to face trial for offence under Section 380/34 I.P.C. . It has been submitted by the learned counsel for the petitioners that once the earlier petition was dismissed on merit summoning the accused to face trial on the basis of a second complaint for the same occurrence and based on the same set of facts amounts to the petitioners facing double jeopardy and amounts to an abuse of the process of the court. It appears from perusal of order dated 10.10.2006 passed in Complaint Case no.787 ( C) of 2006 that the learned Magistrate had noticed that sufficient time and opportunity had been granted to the complainant to produce her evidence and even her lawyer had been advised to do so , but notwithstanding the same no evidence except the statement of the complainant on S.A. was available on record and having considered the same he had dismissed the complaint under Section 203 Cr.P.C. Obviously, in the facts and circumstances of the case, it could not be said that the dismissal of the complaint, bearing Complaint Case no.787(C) of 2006 was not on merits, but was by reasons of default since the complainant failed to produce her - 6 - witnesses. Dismissal order which remains unreversed is no bar to the re-hearing of the complaint by the same Magistrate or by another Magistrate. In such cases, Section 362 Cr.P.C. does not apply as an order of dismissal under Section 203 Cr.P.C. is not a judgment or is Section 300 Cr.P.C. a bar. The plea of the petitioners having filed Bihar P.S.Case No.210 of 2006 earlier and the instant complaint case being filed as an after thought and by way of counter-blast is their defence which cannot be a matter for consideration at this stage. Due regard being had to the facts and circumstances of the case, I find not merit in this application which is accordingly dismissed. The petitioners, however, shall be at liberty to agitate all these issues at the time of framing of charge. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 25th November,2008 Nawal Kishore Singh /A.F.R.