FAKHRUDDIN Vs. SAMSHUL NISHAN

JUDGEMENT

(1.) THIS petition under Section 482 CrPC has been filed for quashing the proceedings of a complaint dated June 23, 1978 (Annexure 2) filed by Smt. Shamshul Nishan, opposite party No. 1, against the twelve petitioners for offences under Sections 452, 506, 307, 147 amd 148 IPC. It is not disputed that two earlier complaints with respect to the same occurrence were filed by the complainant against the petitioners of prosecution on November 23, 1977 and November 19,1978 respectively. The complaint which was dismissed on November 19, 1978 was filed on November 30, 1977. It is not known when the first complaint was filed which was dismissed on November 23, 1977. Similarly the stage at which the earlier complaint was dismissed on November 23,1977 is not known but the certified copy of the learned Magistrate's order dated November 19, 1978, which has been filed through a supplementary affidavit, shows that the second complaint was dismissed for complainant's default to appear in court till noon. There is however, no dispute that the present complaint pending against the petitioners is the third complaint on the same facts.

(2.) THE learned counsel for the petitioners has urged that the story set up in the complaint is inherently improbable as Fakhruddin, petitioner No. 1, a Haji and an old man having grand children, is said to be keen for having sexual indulgence with the complainant and her daughters, and when he tailed to achieve his purpose, all the petitioners who include young and unmarried girls of Fakhruddin's family, are said to have raided complainant house in order to beat her. THEre can be no doubt about the fact that this story is highly improbable. Apart from this inherent improbability in the complainant's version of the occurrence, the learned counsel for the petitioners has contended that the present complaint is not maintainable because it has been filed without making out any special case for its institution after the dismissal of two earlier complaints. This contention has also force.

(3.) I, therefore, allow this petition and quash the proceedings going on against the petitioners in the Court of the Magistrate concerned on the basis of complaint Annexure 2. The said complaint case shall stand consigned to record. Petition allowed. in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. He mainly based himself on sub-clause (2) according to which the proper order in cases where opposite party adduced reliable evidence denying public right of way was to stay the proceedings till the existence of that right was decided by a competent court. His contention was that a criminal court had no jurisdiction to decide a civil right like the existence of a public way which lay within the exclusive forum of a civil court only. In this connection he relied upon Nand Kishore v. State of U. P., 1975 ACC 12 which reads as below