ROHAN MAHTO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Applicant has prayed for quashing of the order dated 11.11.2009 passed by Sessions Judge, Giridih in Cr. Revision No.40 of 2009 by which the order dated 02.04.2009 passed by Sub Divisional Judicial Magistrate, Giridih in Complaint Case No.1309 of 2007 in which cognizance under Sections 323 and 354 of the Indian Penal Code was taken, have been set aside. Further prayer is for quashing of the subsequent order dated 17.04.2010 passed by the Sub Divisional Judicial Magistrate, Giridih in Complaint Case No.1309 of 2007 whereby the Court taken the cognizance against the petitioner under Sections 323 and 376 of the Indian Penal Code without following the direction of the Sessions Judge dated 11.11.2009. The further prayer is for quashing the entire criminal proceeding pending against the petitioner arising out of Complaint Case No.1309 of 2007 pending in the Court of Sub Divisional Judicial Magistrate, Girdih.

(2.) The prosecution case, in short, is that the complainant namely Reshma Devi had gone to her farm with basket and Hasua for collecting grass at Korma situated in village Pindatanr at about 4.30 p.m. Suddenly, accused Rohan Mahto caught hold her from back side and after pressing her mouth dragged her on the ground near a ditch besides the farm and committed rape upon her against her will. When she resisted, the accused assaulted her with fist and slaps. The further case is that since her husband was outside village so the complaint went to Police station with witness Dwarika Mahto but the Police did not register the case. She lodged a case before the Court of learned Magistrate, Giridih on 13.10.2006 which was numbered as Complaint Case No.1395 of 2006. Although the Sections 323 and 376 of the Indian Penal Code was alleged in the complaint petition but the cognizance of offence was taken under Section 354 of the Indian Penal Code and the requisites were directed to be filed by 30.05.2007. It is further stated that Complaint petition was dismissed on 18.06.2007 as order for filing requisites were not complied with. Thereafter, complainant preferred a revision before the Sessions Judge, Giridih which was numbered as Cr. Revision No.102 of 2007 and the same was pending. It was further mentioned that one application was also filed for restoration of said complaint case but the same was rejected by the Court of Magistrate vide order dated 01.08.2007 and thereafter she filed Second complaint petition which has been numbered as 1309 of 2007.

(3.) Counsel for the accused/petitioner submitted that first complaint petition no.1395 of 2006 was filed with allegation under Section 376 I.P.C. but the learned Court of Magistrate found prima facie case only under Section 354 of the Indian Penal Code. Since the order of filing requisites were not complied with resulting to dismissal of first complaint case then she preferred a criminal revision which was numbered as 102 of 2007 before the Sessions Judge but during its pendency, the Second complaint case was filed as per averment made in Para 4 of the second complaint petition. He further submitted that the second complaint was filed on 04.08.2007 and the Cr. Revision No.102 of 2007 was withdrawn on 10.09.2007 by seeking permission to withdraw. The permission was accorded and the revision was dismissed as withdrawn and the copy of the order with Lower Court Record was ordered to be sent to the Court concerned. Counsel for the accused/petitioner further submitted that by withdrawing the criminal revision, the inference should be that the order taking cognizance under Section 354 of the Indian Penal Code attains finality. He also submitted that as per assertion in the second complaint petition, the complainant after knowledge of dismissal of her first complaint petition had also filed an application for its restoration but the same was rejected by the Court of learned Magistrate on 01.08.2007. He further submitted that the second complaint was filed on 04.08.2007 whereas the revision filed against the order taking cognizance of the first complaint was pending and application seeking permission to withdraw was granted on 10.09.2007 that shows the conduct of the complainant. Since the cognizance was not taken as per her desire, then she filed second complaint case on the same set of fact narrating the same incident. Counsel for the accused/petitioner also submitted that the complainant was in full knowledge of dismissal of first complaint and the pendency of criminal revision but suppressing the same, she filed second complaint against this petitioner narrating the same set of incidence and again Sections 323 and 376 of the Indian Penal Code were mentioned on the basis of same set of witnesses also. He relied on a judgment of Poonam Chand Jain and Another v. Fazru reported in (2004) 13 SCC 269 and submitted that the Hon'ble Court has laid down that only in exceptional circumstances under three categories (i) manifest error (ii) manifest miscarriage of justice, and (iii) new facts which the complainant had no knowledge or could not with reasonable diligence have brought forward in the previous proceedings could file second complaint case. Any exceptional circumstances coming within anyone or more of the aforesaid three categories would fulfill the test. Lastly, he has submitted that in first complaint, order taking cognizance under Section 354 I.P.C. attained finality in view of the withdrawal of criminal revision. Subsequent filing of second complaint on same set of fact, circumstances and witnesses, is an abuse of process of law as the Court of learned Magistrate has not taken cognizance under the desired Sections. The Court of Sub Divisional Judicial Magistrate, Giridih took cognizance under Sections 323 and 354 of the Indian Penal Code in Second Complaint Case No.1309 of 2007 also. Advancing his argument, he questioned the authority of the Court of Magistrate in taking cognizance on third occasion as on earlier two occasions on the same identical material the Court has found it false and improbable the allegation of ingredient of Section 376 of IPC. The direction of the Sessions Court passed in Cr. Revision No.40 of 2009 for further enquiry was not followed by the Court of Magistrate and mechanically took the cognizance under Sections 323 and 376 of IPC vide order dated 17.04.2010.