Ajit Singh vs Makhan Singh

S. S. Grewal, J.

Ajit Singh filed complaint under Section 4B and Section 6 of the Dowry Prohibition Act and under Section 406 of the Indian Penal Code against Makhan Singh respondent and four others on 19.11.1986. After recording the preliminary evidence only Makhan Singh respondent was summoned to stand his trial under Section 406 of the Indian Penal Code while the complaint regarding the other accused was dismissed. Makhan Singh appeared in the Court and thereafter the case was fixed for recording evidence of the complainant. The said complaint was dismissed for want of prosecution in the absence of the complainant on 16.8.1990 vide order of Judicial Magistrate 1st Class, Jalandhar.

Thereafter Ajit Singh filed fresh complaint on 24.8.1990 on same facts and after recording statement of Ajit Singh, a complainant, the trial Magistrate summoned Makhan Singh accused to stand his trial under Section 406 of the Indian Penal Code vide order dated 2.7.1991. Aggrieved against the summoning order, Makhan Singh accused filed a revision petition, which was allowed by the Additional Sessions Judge, Jalandhar, vide his order dated 21.5.1993 holding that the second complaint was not competent and the impugned order summoning Makhan Singh accused was set aside. Against the aforesaid order passed by the Additional Sessions Judge, Jalandhar, Ajit Singh has come up in revision.

On behalf of the petitioner, it was submitted that the learned trial Magistrate, has gravely erred in dismissing the complaint in default even though both the parties were not present on 16.8.1990 because of mistake of date of hearing and as such the absence of the complainant was not intentional or deliberate and there were special circumstances for entertaining the second complaint and summoning Makhan Singh as an accused on the same facts on which the first complaint had been filed. Concerning the exceptional circumstances it was submitted that 11.8.90 was the date fixed in the case and as the Presiding Officer was on tour, the case was adjourned in the absence of the parties for 16.8.90 on which date the first complaint was dismissed in default whereas both the parties were under the impression that date of hearing fixed in this case was 21.8.90 and not any earlier date. There is considerable force in the argument advanced by the learned counsel for the petitioner.

Reliance in this respect has rightly been placed on the authority of the apex Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 wherein as per majority view it was held as follows :

"An order of dismissal under Section 203, Criminal Procedure Code is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances i.e. 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."

In the afore cited authority in Pramatha Nath''s case (supra), it was further held, that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.

Relying upon the authority of Pramatha Nath''s case (supra) it was observed by the apex Court in Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 that "it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out."

Dealing with this aspect of the case, it was reiterated by the apex Court in Maj. Genl. A. S. Gauraya and another v. S. N. Thakur and another, AIR 1986 SC 1440, that "a second complaint is permissible in law if it could be brought within the limitation imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sardark, 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."

Relying upon the afore cited authorities of the apex Court, a similar view was expressed by A. P. Chowdhri, J. in Baljinder Singh v. Jagsir Singh and Ors., 1991(2) Recent Criminal Reports 251 .

On the other hand, it was vehemently argued by the learned counsel for the respondent that the second complaint in this case was not maintainable as after the dismissal of the first complaint, the complainant (present petitioner) had the remedy to approach the revisional authorities for setting aside the order of dismissal of the complaint.

Reliance in this respect was placed on the Single Bench authority of this Court in Ranjit Singh and Ors. v. Pritam Singh, 1992(1) Chandigarh Criminal Cases 7. The facts in Ranjit Singh''s case (supra) are entirely different. In that particular case Pritam Singh complainant brought first complaint on 27.1.1986 which was dismissed for nonappearance of the complainant on 20.10.1986 and the second complaint was filed by Pritam Singh on the same facts on 18.6.1987 i.e. after about eight months of the dismissal of the first complaint whereas in the present case the second complaint was filed on 24.8.1990 i.e. after eight days of the dismissal of the first complaint. In the present case, it is pertinent to note that the parties were under mistake about the actual date of hearing. Both the parties were under the impression that the date of hearing was 21.8.1990 whereas the date actually fixed was 11.8.1990 on which date the Presiding Officer was on tour and the case was adjourned to 16.8.1990 and as both the parties were absent, the complaint was dismissed in default on that date. So far as the case in hand is concerned, special case has been made out for the trial Magistrate to entertain the second complaint which is fully concovered by the afore cited authorities of the apex Court. The authority in Pritam Singh''s case (supra) is clearly distinguishable and not applicable to the facts of the case in hand.

The second authority relied upon by the learned counsel for the respondent is another Single Bench authority of this Court in Sohan Singh and Ors. v. The State of Punjab and Ors., 1992(2) Recent Criminal Reports 423 , wherein, it was held that the complainant in that particular case had not made out a case for the Magistrate to proceed on the same facts again regarding which their previous complaints had been dismissed and consequently the impugned complaint and summoning order in subsequent proceedings were quashed. This view is also based on the authorities of the apex Court in Bindeshwari Prasad Singh''s case and Maj. Genl. A. S. Gauraya''s case (supra).

In Sohan Singh''s case (supra) the S.D.M. had discharged the petitioners in security proceedings on 30.12.1987 with respect to the occurrence which allegedly took place on 27.4.1987. The complaint was filed on 14.6.1988 which was dismissed on 24.1.1989 in default for nonappearance of the complainant. On same facts the complainant filed second complaint which was also dismissed in default on 28.3.1989. The third complaint filed by the complainant was dismissed on 25.7.1989. Thereafter fourth complaint was filed on 27.7.1989 without giving any explanation for delay and giving any special reasons for filing this complaint after dismissed in default of the three earlier complaints. The authority in Sohan Singh''s case (supra) is based on peculiar facts of that particular case whereas the acts of the present case are entirely different in which as already discussed earlier special case has been made out for the trial Magistrate to entertain the second complaint. The afore cited authority in Sohan Singh''s case (supra) is also not applicable to the facts of the case and is clearly distinguishable.

For the foregoing reasons, the impugned order passed by the learned Additional Sessions Judge cannot be legally sustained. The same is hereby set aside and the order of the trial Magistrate dated 2.7.1991 is restored. Both the parties, through their counsel, are directed to appear before the trial Court on 18.3.1994. The trial Court shall proceed and dispose of the complaint according to law expeditiously. This petition is accordingly allowed.