Judgment:
Prasenjit Mandal, J.
1. This application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 is at the instance of the accused person of a case and is directed against the order dated 03.09.2009 passed by the learned Judicial Magistrate, Second Court at Alipore in C-1300 of 2009 thereby passing order for proceeding against the accused person/petitioner for offences punishable under Section 323/448 of the I.P.C.
2. In June, 2009 the petitioner received a summons from the learned Judicial Magistrate, Fifth Court at Alipore requiring him to answer to offences under Sections 341/323/504/506/34 of the I.P.C., 1860. Md. Anwar Azim filed the complaint case No. C-1301 of 2009 stating that the petitioner is a trespasser of a premises. The accused person/petitioner along with others trespassed into the land of the complainant on 07.03.2009 at 2.30 p.m. and assaulted the complainant and other security guards. Then, again on 08.03.2009 at 5.30 p.m. the accused person/petitioner and their associates committed criminal trespass and assaulted the petitioner with fists and blows. The petitioner filed one petition under Section 144(5) in relation to the application under Section 144(2) of the Cr. P.C., 1973 filed by the so-called owner of the land. The petitioner surrendered before the learned Judicial Magistrate at Alipore accordingly. He was examined under Section 251 of the Cr. P.C. and then the learned Magistrate fixed the next date for recording evidence.
3. The accused person/petitioner also received information that another criminal case against him was lodged under the complaint case No. C-1300 of 2009. He was shocked to find that the complaint cases bearing Nos. C-1300 of 2009 and C-1301 of 2009 were identical and verbatim complaints stating, inter alia, that the opposite party No. 1 and another security guard were the victims of threat and assault. That complaint case bearing No. C-1300 of 2009 was transferred to the Court of the learned Judicial Magistrate, Second Court at Alipore. Therefore, he has prayed for quashing the latter proceeding being No. C-1301 of 2009 by this application.
4. Mrs. Chandreyee Alam, learned Advocate for the petitioner, submits that two complaint cases bearing Nos. C-1300 of 2009 and C-1301 of 2009 were lodged over the self same incident and the place of occurrence in the two cases is the same and one. So, the two proceedings cannot proceed simultaneously. The latter one, that is, bearing No. C-1301 of 2009 should be quashed.
5. On the other hand, Mr. Swapan Kumar Mullick, learned Advocate for the State, submits that it may be the situation that the two petitions of complaint were drafted by the same lawyer over the self same incident but the complainants of the two cases are not identical. Mr. Md. Anwar Azim is the complainant in C-1301 of 2009 while in the other case bearing No. C-1300 of 2009 Mr. Hiyatullah Khan is the complainant.
6. Now the question is whether the two criminal cases can proceed simulataneously.
7. After hearing the learned Advocate for both the parties and after going through the materials on record, I find that the place of occurrence of the two cases are the same and identical. The two petitions of complaint lay down similar facts while in the earlier petition of complaint, that is, C-1300 of 2009 Md. Anwar Azim has described himself as the victim of the occurrence. He has also stated that Mr. Hiyatullah Khan was also assaulted. In the other case, similarly it was mentioned that Mr. Anwar Azim and Mr. Hiyatuallah were also injured. It may be recorded here that dates of occurrence are on 07.03.2009 at 2.30 p.m. and 08.03.2009 at 5.30 p.m. Thus, from the above facts, it is clear that two cases were lodged by the two victims over the self same incident. The two complaint cases are now proceeding before the two courts, namely, learned Judicial Magistrate, Fifth Court and learned Judicial Magistrate, Second Court. Since two victims have lodged two separate petitions of complaint, I am of the view that there is no bar to proceed with the two petitions of complaint. Every victim has a right to proceed against the assailant according to his own choice. There is no bar to proceed with the two trials. Of course, since the assailant is the one and same, he may seek for trial of the two cases jointly by the one and same Magistrate to avoid conflict of judgments; but this is a separate matter not to be decided in this case. Here, I find that there is no justified ground to quash the latter case being No. C-1301 of 2009. On perusal of the certified copy of the order of C-1301 of 2009, I find that the learned Magistrate has proceeded with the said case in accordance with law. At first, he examined the complainant and one witness on S.A. Then he proceeded with the case in accordance with law. I do not find any illegality or infirmity in the orders of C-1301 of 2009. Therefore, this application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 is without any merit. It is, therefore, dismissed.
8. Considering the circumstances, there will be no order as to costs.
9. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.