JUDGMENT
Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioners praying for quashing the proceeding being B.G.R. No. 1102 of 2002 arising out of Metiabruz P.S. Case No. 37(2)02 under Sections 147/148/447/448/323/324/307/506/34 IPC pending in the Court of learned S.D.J.M., Alipore, South 24 Parganas, as also all orders including order dated 07.05.2002 passed therein.
2. The circumstances leading to the above application are that one Mumtaz Bibi lodged a complaint on 11.07.2000 in the Court of learned S.D.J.M., Alipore against the present petitioner No. 1 and others viz. Ahmed All, Sk. Zinna, Sk. Jasimuddin and Marjina, daughter of petitioner No. 1, inter alia alleging that on 26.05.2000 at about 4.40 p.m. when she was busy with her household works, the accused persons abused her as also other members of the family and while her son Sk. Moinuddin protested, Sk. Ahmed All, and Sk. Zinna being armed with bamboo and wooden sticks trespassed into the ‘and and assaulted Moinuddin causing bleeding injuries. When the complainant came out of her room she too was assaulted by petitioner No. 1 Sk. Md. Ali. Sk. Jasimuddin and Marjina with bhojali, thereby causing injury on her cheek and permanent disfiguration of her face. They also damaged her household articles. On her cry when local people came, the accused persons fled away. She and her son were treated by a local doctor. A G.D.E. being No. 1555 dated 26.06.2000 was lodged with Metiabruz P.S. The fact of threatening by the accused persons to her and other members of the family with dire consequences was also diarised. After taking cognizance of the offence and examining the complainant and her witnesses, the learned Magistrate issued process under Sections 325/ 34 IPC against Sk. Zinna and Sk. Jasimuddin only on 11.07.2000 and dismissed the complaint under Section 203 Cr.PC against petitioner No. 1 and others. On account of non-appearance of the complainant, the petition of complaint was dismissed under Section 256 Cr.PC on 06.02.2002.
3. Suppressing the above fact, the complainant filed another application under Section 156(3) Cr. PC on 02.09.2000 over the selfsame incident alleging commission of offences under Sections 147/ 148/447/448/323/324/307/506/34 IPC against the petitioners and others viz. Sk. Jasimuddin, Sk. Zinna, Marjina Bibi* Sk. Ahmed Ali and Yashmin which was forwarded by the learned S.D.J.M. to O.C., Metiabruz P.S. for treating the same as FIR. and on the basis of the same Metiabruz P. S. Case No. 37 (2) 02 under the aforesaid provisions was started. After completion of investigation charge sheet was submitted under the said provisions against the petitioners and other accused persons, and the learned S.D.J.M. after taking cognizance of the offences on 07.05.2000 issued warrant of arrest against them.
4. Being aggrieved by the said proceeding two petitioners have come up before this Court for quashing of the same.
5. Mr. Joymalya Bagchi, learned Counsel for the petitioners, on referring the cases of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar , Poonam Chand Jain v. Fazni and Susanta Mukherjee v. State of West Bengal reported in 2001 C.Cr.LR (Cal) 52 contended that though there is no statutory bar in filing second complaint, such second complaint on same facts would be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record, or on a misunderstanding of the nature of complaint etc., and since no such exceptional circumstances exist in the case, cognizance taken in respect of the offence at least against the two petitioners is bad in law and as such the proceeding against both the petitioners deserves to be quashed. Mr. R.S. Chatterjee, learned Counsel for the State, on the other hand, on referring the case of Prasanta @ Sambhu Matty v. State reported in 1992 C. Cr. LR (Cal) 415 submitted that though the fact of the second complaint is substantially the same, mere dismissal of the first complaint is not any ground for quashing the proceeding and so the application should be dismissed.
6. The facts of the second complaint are more or less identical with the exceptions that in the second complaint two more names of the offenders have been added, they being Minara Khatun (petitioner No. 2) and Yashmin with further allegation that all the accused persons being armed with lathi, iron rod, nepala, bhojali, pipe gun, bomb etc. trespassed into the house of the complainant, assaulted her. her husband and two sons with fists and blows, lathi etc. and when accused Jasimuddin in an attempt to commit murder of her eldest son Mainuddin assaulted him with a nepala, she went to his rescue while she sustained injury on her cheek, that all the accused persons assaulted them indiscriminately and when they attempted to kill her husband with a bhojali she resisted with hands resulting in bleeding injury on her nand and that the neighbourers removed them in injured condition to the P.S. which accepted their complaint and referred them for medical treatment.
7. It is well settled that an order of dismissal under Section 203 Cr.PC is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was 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 interests 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, as was held in the case of Pramatha Nath Talukdar (supra). Similar is the observation in the case of Poonam Ghana Jain (supra). The case of Prasanta (supra), so referred to by the learned Counsel for the State, has no manner of application in the present facts and circumstances. In the present case, since the complainant totally suppressed about her filing the said first complaint, and consequently no exceptional circumstance has been made out for entertaining the second complaint bearing out identical facts in the present proceeding being B.G.R. Case No. 1102 of 2002 arising out of Metiabruz P.S. Case No. 37(2)02 under Sections 147/148/447/448/323/324/307/506/34 IPC. it is not maintainable at least against the present petitioner No. 1 Sk. Md. Ali as the first complaint was dismissed against him under Section 203 Cr. PC on 11.07.2000.
8. As regards petitioner No. 2 Minara Khatun and Yashmin, since they were not arraigned as accused in the first complaint, the question of quashing the present proceeding against them is out of the way.
9. So far as Sk. Ahmed All and Marjina are concerned, though the first complaint was dismissed under Section 203 Cr. PC against them also, as they have not come up to assail the present proceeding, they are not entitled to any relief.
10. As regards Sk. Zinna and Sk. Jasimuddin against whom process was issued under Section 325/34 IPC, the petition of complaint, as stated earlier, was dismissed under Section 256 Cr.PC on 06.02.2002 on account of non-appearance of the complaint. Mere omission to state the correct provision of the statute is no bar on the part of the Court to apply the correct provision, and so both the above accused may be treated to have been discharged under Section 249 Cr.PC. A question consequently arises for consideration is whether the requirement of exceptional circumstances for entertaining second complaint on the same facts, as is applicable in case of dismissal of complaint under Section 203 Cr. PC. is necessary in case of entertainment of the second complaint after discharge of an accused under Section 249 Cr.PC. The answer, in my considered view, is in affirmative since if in the case of dismissal of the complaint under Section 203 Cr.P.C., the existence of special circumstances is essential to entertain the second complaint, fulfilment of the said requirement is more necessary for entertaining the second complaint after discharge of an accused under Section 249 Cr.PC. But as the said two accused viz. Sk. Zinna and Sk. Jasimuddin have not challenged the present proceeding like Sk. Ahmed Ali and Marjina, no relief can be extended to them.
11. In the premises, in the light of the above discussion, the present application be allowed in part. Let the proceeding being B.G.R. No. 1102 of 2002 arising out of Metiabruz P.S. Case No. 37(2) 02 now pending in the Court of learned S.D.J.M., Alipore be quashed against petitioner No. 1 Sk. Md. Ali only.
Let a copy of this order be sent down at once to the learned Court below with a direction to dispose of the proceeding as expeditiously as possible.