IMPORTANT POINT
The State cannot allow victims to file complaints on the same facts after withdrawal of prosecution under Section 321 Cr.P.C.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. N. J. Dutta, learned counsel for the petitioners. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State respondent and Mr. A. M. Barbhuiya, learned counsel for the respondent No. 2.

2. The present application is filed under Section 482 Cr.P.C. for quashing of proceeding in CR case No. 604/2023 pending in the court of learned Judicial Magistrate 1st Class, Hailakandi.

3. Before dealing in details, the argument of the learned counsel for the parties, let this Court first record the facts of the present case which are necessary for proper determination of the case in hand.

I. On 28.05.2016, an FIR was lodged by one Fariz Uddin Laskar against one Selim Uddin Laskar, one Kutub Uddin Laskar, one Aynul Hauqe Lascar (petitioner No. 1) one Narzul Haque Laskar (Petitioner No. 2) and one Abdus Suffan Laskar (Petitioner No. 3) with an allegation that the informant and the accused No. 1 and 2 are the brothers and there has been a long standing land dispute relating to their inherited property and to resolve the said dispute several village meetings were held, however, it remain unsettled. Thereafter, 25.05.2016, at around 10:00 AM, a last meeting was held in the residence of the accused No. 1, however, the accused persons attacked the informant with fist blow and accused No. 1 and 2 sat on the body of the informant and assaulted with brick with an intention to kill him etc. It is also alleged that when the wife of the informant came to his rescue, then accused No. 1 and 2 started beating her and pulled out her saree. It is further alleged that when his wife ran away, the accused No. 3 attempted to beat her in a naked condition but somehow she could protect herself.

II. Accordingly, Algapur PS Case No. 75/2016 under Section 120B/143/354(B)/323 IPC was registered.

III. After completion of the investigation, charge sheet was filed on 20.06.2016 and accused Selim Uddin Laskar and accused Kutub Uddin Laskar i.e. accused No. 1 and 2 were sent for trial, however, the present petitioners who were arrayed as accused No. 3, 4 and 5 in the FIR were not sent for trial.

IV. Thereafter, the learned Magistrate 1st Class, Hailakandi, after perusal of the case diary was satisfied that the prima facie case is made out against the accused under Section 448/323/34 of the IPC and accordingly, summons were issued to the accused Nos. 1 and 2, and the matter was fixed for appearance on 30.01.2017.

V. The trial proceeded and as many as 7 (seven) witnesses were examined till 17.11.2022.

VI. At that stage, a petition was filed under Section 321 of Cr.P.C. by the learned Additional Public Prosecutor for withdrawal of the prosecution on the strength of a direction of the Government of Assam issued vide Notification E-217405/52 dated 21.10.2022. Taking note of the guidelines/notification dated 21.10.2022 (supra), the learned Additional Public Prosecutor was allowed to withdraw the prosecution and accordingly GR Case No. 929/2016 arising out of Algapur P.S. Case No. 75/2016 was closed on withdrawal.

VII. Subsequent to such withdrawal, the informant, on the same fact filed a complaint case being C.R. Case No. 604/2023 under Section 120(B)/354(B)/323/34 of IPC before the Chief Judicial Magistrate, Hailakandi arraying all the accused named in the FIR as accused in the complaint case including the present petitioners, who were not charge sheeted/not sent for trial.

VIII. Amongst other, a stand was taken that the case was wrongly withdrawn without verifying facts and the evidence that has already been recorded inasmuch as there were allegation of molestation and by virtue of Notification dated 21.10.2022, case involving molestation cannot be withdrawn.

IX. Accordingly, C.R. Case No. C.R. Case No. 604/2023 under Section 120(B)/354(B)/323/34 of IPC was registered. Statement under Section 200/202 of Cr.P.C. was recorded and the learned magistrate under its order dated 19.08.2023 took cognizance of offences under Section 12