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TMI Blog2005 (4) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of law involved in both these petitions is : Whether the second complaint in a summons case filed on the same set of facts and allegations is maintainable, when the first complaint was dismissed for non-appearance of the complainant and his counsel under Section 256, Cr. P.C. when the accused was present in the Court and the Judicial Magistrate decided not to adjourn the hearing of the case to some other day and acquitted the accused, particularly when the said order of dismissal of the complaint and acquittal of the accused has become final as the same was not challenged by the complainant either in appeal/revision or under Section 482 of the Code ? 4. Before considering the aforesaid question, it is necessary to give certain facts of this case, which are being taken from Cri. Misc. No. 2066-M of 1992. On 3-2-1988, respondent No. 2 filed a complaint (Annexure P-1) against the petitioner under Sections 499/500/501/502 read with Section 34, I.P.C., alleging therein that on 8-12-1987, a news item was published in the daily news paper Jan Satta in which it was alleged that respondent No. 1 and Prof. Sampa, Singh, Minister, Haryana, had gone to Shimla on 20-9-1987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quittal of the accused. It is well settled that there is no provision in the Code empowering a Magistrate to review or recall the order of dismissal of complaint and acquittal of accused passed under this Section. When the Magistrate, in a summons case, has dismissed the complainant and acquitted the accused due to absence of the complaint on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or a petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad appeared in the case, and on the day appointed for his appearance, he is present in the Court, but the complainant or his counsel is not present, then the Magistrate has two options :-- (a) he may adjourn the hearing of the case to some other day; or (b) he may dismiss the complaint and acquit the accused. Once in his discretion the Magistrate decides not to adjourn the case, then the only option left with him is to dismiss the complaint and acquit the accused. In such situation, the complainant has two remedies, firstly to file appeal against the order of acquittal, and secondly to file revision or petition under Section 482 Cr. P.C. for setting aside the order of dismissal of the complaint on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same. Counsel submitted that in this situation, the Judicial Magistrate has no jurisdiction to entertain an application for re-calling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es because on 11-7-1988 the complainant or his counsel could not appear in the first complaint, as the counsel had noted a wrong date i.e. 25-7-1988 on his brief and the complainant was not at fault. Therefore, in such circumstances, if the trial Court has entertained the second complaint on the same facts and issued the summons, the same was not illegal or without jurisdiction. In support of his contention, counsel for the respondent relied upon judgments of the Hon'ble Apex Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (1962) Cri LJ 770 (supra), Major General A.S. Gauraya v. S.N. Thakur (supra) and a judgment of this Court in Ajit Singh v. Makhan Singh (1994) 2 RCR 361. 12. If a private complaint is filed under Chapter XV of the Code, in a summons case, the same can be dismissed by the Judicial Magistrate at the following four stages :-- (i) On receipt of a complaint for an offence, without recording the statement of the complainant or his witnesses, if the Judicial Magistrate comes to the conclusion that the contents of the complaint itself do not disclose any offence or provide a sufficient ground for further proceeding with the complaint. Such dismissal will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on the ground that neither the complainant nor his counsel was present and the Magistrate did not adjourn the case and dismissed the complaint under Section 256 of the Code. In view of the aforesaid facts, the Hon'ble Apex Court, while considering the various judgments, has further observed as under :-- Though there was nothing in law to bar the entertainment of a second complaint on the same facts, exceptional circumstances must exist for entertainment of a second complaint when on the same allegations a previous complaint had been dismissed.... I accept the view expressed by the High Courts that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint has been dismissed under Section 203 of the Code of Criminal Procedure. I also accept the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 20-4(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is sufficient gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P. C. does not contain any provision enabling the criminal Court to exercise such an inherent power. 17. In Jatinder Singh v. Ranjit Kaur, 2001 CriLJ 1015 , the wife filed a complaint against her husband and four others for the offence of bigamy under Section 494 read with Section 109 IPC. The Judicial Magistrate kept on waiting for holding an inquiry under Section 202 of the Code. The unfortunate lady had to file an application before the Judicial Magistrate reminding that for the last more than one year, she is regularly appearing in the Court and the case has been adjourned on many occasions without the accused being summoned to appear. Even though the statement of the complainant and her witnesses were recorded, but before passing the order to summon the accused, the Magistrate dismissed the complaint because the complainant was not present inside the Court when the case was called. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en given against the complaint upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. S.K. Das, J. (as he then was) while dissenting from the said majority view had taken the stand that right of a complainant to file a second complaint would not be inhibited even by such considerations. But at any rate the majority view is that the second complaint would be maintainable if the dismissal of the first complaint was not on merits. 18. In the aforesaid case, again the dismissal of the first complaint by the Judicial Magistrate was not under Section 256 of the Code. 19. Again in Mahesh Chand v. B. Janardhan Reddy, 2003 CriLJ 866, the question of filing the second complaint on the same facts came up for consideration before the Hon'ble Apex Court. In that case, the FIR was lodged by the complainant for the alleged offence and the cancellation report was submitted by the Investigating Officer as he came to the Civil dispute. The complainant submitted a protest report and filed a complaint. Ultimately, the Judicial Magistrate accepted the cancellation report and that order became final. Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not. 20. In Poonam Chand Jain v. Fazru again the question of maintainability of second complaint on the same allegations after dismissal of the first complaint came up for consideration before the Hon'ble Apex Court. In that case, a complaint filed by Fazru was dismissed by the Judicial Magistrate on 13-1-1994. It appears that the said complaint was dismissed under Section 203 of the Code. Against the order, a revision was filed which was also dismissed. Again in the year 1997, second complaint was filed by the complainant, in which summons were issued. The accused challenged the summoning order in revision before Addl. Sessions Judge, which was allowed and the complaint was dismissed. Aggrieved against the said order, the complainant filed petition before this Court, which was allowed and it was held that if the accused had any grievance against the summoning order, they could seek review of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient reasons for non-appearance of the complainant before the Court on the date fixed or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same. In such circumstances, the appellate /revisional Court or the High Court in exercise of its power under Section 482 of the Code, can set aside such order, if the complainant explains his non-appearance on the particular day or convinces the Court that in the facts and circumstances of the case, the Magistrate has failed to exercise his discretion properly while not adjourning the case for some other day and has wrongly dismissed the complaint and acquitted the accused. A second complaint is not barred where the matter has not been decided on merit and the same can be filed in exceptional circumstances. The exceptional circumstances for entertaining the second complaint have been brought in the following three categories :-- (i) Manifest error; (ii) Manifest miscarriage of justice; and (iii) New facts, of which the complainant had knowledge, but could not be brought on record by the complainant, with reasonable diligence, in the previous proceedings, have been adduced. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be 'tried' again for the same offence. The word tried used in this section would not necessarily mean 'tried on merits'. In a summons case, the accused is said to be tried when he appears and answers to the intimidation under Section 251 of the Code which takes the place of a formal charge but in a warrant case or in a case triable by Sessions, the trial commences after a charge is framed under Section 228 of the Code. In a summons case, acquittal of an accused under Section 256 of the Code is covered by Section 300(1) of the Code keeping in view the explanation added to Section 300. When a complaint is dismissed on account of non appearance of the complainant or his counsel, but the accused is present, and the accused stands acquitted under Section 256 of the Code, then in my opinion, the order of such acquittal under Section 256 of the Code does not come within the explanation of Section 300 of the Code, which provides that dismissal of a complaint or discharge of the accused is not an acquittal for the purpose of this section. The explanation talks about dismissal of the complaint and discharge of the accused. The words 'discharge' and 'acquittal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not challenge the same before the competent Court passing of such an order cannot be said to be causing manifest miscarriage of justice. The complaint, after 7 days of the dismissal of his first complaint, has filed the second complaint, verbatim the first one. Issuing of process on such a complaint, in my opinion, by the Magistrate amounts to reviewing the earlier order, which under the law is not permissible. In the instant case, the dismissal of first complaint was not a dismissal under Section 202 or 203 of the Code. Rather, it was dismissed under Section 256 of the Code. In that situation, filing of the second complaint without there being any manifest error or manifest miscarriage of justice could not be entertained. Thus, in my opinion, in the special facts and circumstances of the case, the issuing of summon by the Magistrate to the petitioner, on the second complaint which was filed verbatim on the same allegations is an abuse of the process of the Court, particularly keeping in view the fact that the alleged occurrence is of the year 1982. 26. In view of the aforesaid, both these petitions are allowed. The second complaints filed by respondent No. 2 and the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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