Smt. Namita Bose vs Deepak Kumar Bose

P.K. Tripathy, J.—Heard.

Petitioner''s move to sustain a second complaint on the selfsame allegations having been turned down by learned S.D.J.M., Cuttack in his order on 5.1.1995 in I.C.C. No. 95 of 1994 and which was maintained by learned First Additional Sessions Judge, Cuttack in his order dated 29.3.1995 in Criminal Revision No. 29 of 1995, she has approached this Court for legal remedy seeking invocation this Court for legal remedy seeking invocation of inherent power u/s 482, Code of Criminal Procedure, 1978 (in short ''the Code'').

To adjudicate the issue relevant facts, shorn of unnecessary details, is placed as follows:

Marital status came into being between the Petitioner and the opposite party, as stated, on 4.5.1974. That relationship was shattered followed with an order for maintenance in her favor in 1984 in a proceeding u/s 125 of the Code vides order in Criminal Misc. Case No. 301 of 1982. She alleges that at the time of desertion, opposite party retained her ''Stridhana'' i.e., presentations given by relatives to her at the time of marriage viz., ornaments made of gold weighing 21 tolas and 12 annas and furniture and utensils etc.. At initial periods Petitioner''s request to return the said articles was avoided by the opposite party with request to wait for some time. After the death of her mother-in-law on 14.1.89, her further similar request was avoided by the opposite party on 1.2.89. Her further approach in that respect on 16.1.90 was turned down by the opposite Party, who, on that occasion, scolded her. Hence she filed a complaint registered as I.C.C. No. 18 of 1990 in the Court of S.D.J.M., Cuttack. Learned S.D.J.M. forwarded the same for investigation as per the provisions in Sub-section (3) of Section 156 of the Code. Thus G.R. Case No. 226 of 1990 was registered. After the investigation a final report was submitted on the ground of insufficiency of evidence. Petitioner was intimated through a notice. Thereafter she filed a protest petition in the form of a complaint. That was registered as ICC. No. 80 of 1990 and later on tagged with G.R. Case No. 226 of 1990. Learned S.D.J.M. took up the case for enquiry u/s 202 of the Code. In that respect he granted half a dozen times but the complainant did not appear in Court nor produced her witnesses. Hence on 11.9.90 learned S.D.J.M. dismissed the complaint u/s 203 of the Code and also accepted the final report. About four years thereafter, on the selfsame allegations, Petitioner filed a complaint on 2.8.1994. It was explained therein that due to communication gap she could not appear in the previous complaint case. Learned S.D.J.M. after taking stock of the above facts and antecedent of the case dismissed the complaint u/s 203 of the Code. Learned S.D.J.M. has stated in his order that after availing the opportunity since the Petitioner did not participate in the case resulting in dismissal of the complaint and acceptance of the final report, the further complaint in that respect is not liable to be entertained. Learned Additional Sessions Judge found the explanation of the Petitioner to be unsatisfactory and accordingly dismissed the revision.

Relying on the ratio in the cases of State of Rajasthan v. Aruna Devi and Ors. (1995) 8 OCR (SC) 267, Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, and Mappillaisami Thevar and Ors. v. Muthuswamy Iyer AIR 1949 Mad 76, learned Counsel for the Petitioner argues that there being no bar for entertaining a second complaint, the impugned orders are bad in law and is liable to be set aside with a direction from this Court to the S.D.J.M. to proceed with the complaint case. He further argues that the custody of the aforesaid ''Stridhana'' of the Petitioner in the hands of the opposite party amounts to entrustment and non-return of the same to her clearly disclose offences under Sections 406 of Indian Penal Code (in short ''I.P.C.''). In that context he refers to the case of Pratibha Rani Vs. Suraj Kumar and Another, .

Learned Counsel for the opposite party while repelling to the aforesaid argument, inter alia, contends that the present application u/s 482 of the Code, in true sense, is a second revision in disguise and in view of the provision in Sub-section (3) of Section 397 of the Code this application is not entertain able. Since the above argument of the opposite party is on the point of jurisdiction and maintainability of the present proceeding, that is taken up for consideration on priority basis.

Sub-section (3) of Section 397 of the Code provides that "If an application, under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them". The above quoted provision of law thus debars a second revision against the self same order by an unsuccessful revision - Petitioner. In other words, if an order of a Criminal Court is challenged, in a Criminal Revision, before the Sessions Judge or High Court a second revision by the self same Petitioner against that very order is not maintainable before the High Court or the Sessions Judge, as the case may be. When the statutory provision, as quoted above, debars a second revision, an application u/s 482 of the Code shall not be entertained if in disguise that is a second revision. Mere allegation of an illegality, in such a case shall not be sufficient to invoke the inherent power by way of ignoring the above stated statutory mandate in debarring a second revision. However, inherent power is inviolable if non-interference will result in manifest illegality to prevail resulting in miscarriage of justice or failure of ends of justice or result in abuse of the process of any Court. There having a thin line of demarcation in exercise of provisional jurisdiction and invoking of the inherent power, this Court must examine the mater accordingly so as to avoid exercising the provisional power in the name of exercising inherent power. Keeping in view the aforesaid principle, contention of the Petitioner is considered to find out if this is a fit case where inherent power should be invoked.

In the case of Pratibha Rani (supra), the apex Court set aside the order of Punjab and Haryana High Court, in which the High Court had quashed the Criminal Proceeding brought by Pratibha Rani against her husband and in-laws on the ground that by retaining her ornaments and other belongings (i.e. the Stridhana) and by refusing to return the same to her, the accused person (i. e. the husband and in-laws) did not commit the offence u/s 406, I.P.C. Reversing that finding, the apex Court held that such allegations prima facie constitute an offence u/s 406, I.P.C. Learned Counsel for the opposite party rightly argues that such a contention is irrelevant for consideration in this case, because the Courts below have not dismissed the complaint on any such ground. Learned Counsel for the Petitioner has no reply in that respect.

Learned Counsel for the Petitioner argues with emphasis on his submission that as per the settled position of law there is no bar to entertain a second complaint. In that context it is relevant to refer to the citation relied upon by him.

In the case of "State of Rajasthan" (supra) the facts before the apex Court was that after acceptance of the final report by the Magistrate, he took cognizance of the offences when on the basis of a further investigation, as per the order of the Superintendent of Police, a charge sheet was filed. Placing reliance on the case of Pramath Nath Taluqdar (supra) and referring to the provision in Section 173 (8) of the Code, the apex Court maintained the order of the Magistrate.

In the case of Mappillaisimi (supra) the point for consideration before a Division Bench of Madras High Court was whether the order of conviction against the Petitioner should be held as illegal because of the fact that the accused persons were discharged for non-appearance of the complainant in the trial Court in time and latter on, the same day on the prayer of the complainant the case revived with a separate number but without examination of the complainant u/s 200 of the Old Code. The ratio in that case is not found relevant so far as the present contention of the Petitioner is concerned.

In the case of Pramath Nath Taluqdar (supra), as per the majority view a second complaint is maintainable under exceptional circumstances. In that context the apex Court has propounded that:

....An order of dismissal u/s 203, Code of Criminal Procedure, is however, 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 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 interest 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. ILR 12 Lah. 9 at p..12: AIR 1930 879 (Lahore) at p. 880); Ram Narain Chaubey Vs. Panachand Jain, ; Doraisami Aiyar and Others Vs. T. Subramania Aiyar and Others, . In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean C.J. in ILR 28 Cal. 211 at p. 216, affirmed by a Full Bench in ILR 28 Cal. 652 (FB). It held therefore that a fresh complaint can be entertained where three is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.

(From Paragraph 48 pages 898-899)

Learned Counsel for the Petitioner is unable to show a good reason much less sufficient cause for non-participating in the earlier complaint case. He also fails to explain the long delay of about four years between the two complaints. Similarly he is unable to show how non-interference with the impugned order will result in miscarriage of justice. Under such circumstances, this Court does not find any justifiable reason to interfere with the impugned orders by invoking the inherent power. Hence the Criminal Misc. Case is dismissed. However, this dismissal order shall not be construe as a bar if the Petitioner shall seek redress from the Courts of competent jurisdiction on a fresh cause of action.