Anil Kumar Sharma vs The State of Bihar and Others

S.B. Sinha, J.—Whether a second complaint petition is maintainable whence the first complaint petition has been dismissed for default is the question involved in this application?

The opposite party No. 2 filed a complaint petition as against the Petitioner that the Petitioner was married with the accused No. 2 Lalita Devi at Garib Ashthan Mandir, Muzaffarpur and living with her. It was further alleged that she had regularly been tortured by the Petitioner as she was issueless.

It was further alleged that when the complainant objected to the afore mentioned acts, the Petitioner threatended to kill her and on information to her parents and uncle, they came and asked the Petitioner to provide maintenance to his wife but instead too accused persons took away her Jewellury and clothing etc. worth Rs. 36,500/-.

The said complaint petition was filed on 5.4.1989.

The Chief Judicial Magistrate transferred the said case to the Court of Sri I.D. Mishra, J.M. 1st Class, Muzaffarpur u/s 192(i) of the Code of Criminal Procedure, whereupon the transferee court took cognizance of offences as against the Petitioner under Sections 494, 498(A), and 325 of the I.P.C, by an order dated 3.4.1991. However, as the Opposite Party No. 2 did not take steps for service of notices upon the accused persons pursuant to the direction of the Court as contained in the order dated 3.4.1991, the complaint petition was dismissed. An application by the complainant to recall the said order was rejected by an order dated 6.5.1992. On 14.5.1992, Anr. complaint petition was filed, whereupon cognizance has been taken as against the Petitioner.

The learned Counsel appearing on behalf of the Petitioner submitted that in the facts and circumstances of the case, the order taking cognizance was illegal inasmuch as the criminal court could not have recalled its earlier order dismissing the complaint petition for default.

The learned Counsel in support of his contention has relied upon a decision of the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, .

From the impugned order, it is evident that a new complaint petition was filed wherein the complainant was examined on solemn affirmation. Five witnesses had also been examined by the court below. The learned Judicial Magistrate had taken cognizance of the offence on the basis of the statements made on oath by the complainant as also other witnesses. It is only by way of statement of fact that it had been noticed in the impugned order that in the earlier case also, cognizance had been taken as against the accused persons.

In my opinion, the order dismissing the complaint petition for default cannot be said to be a final order on the merit of the matter or an order u/s 203 of the Code of Criminal Procedure. In fact upon taking cognizance of the offence, the process had earlier been directed to be issued in terms of Section 204 of the Code of Criminal Procedure.

The Supreme Court in Pramatha Nath''s Case (supra) inter alia observed:

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 the complaint or it was manifestly absurd, unjust and follish 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 complaint upon a full consideration of his case, he or any other person should be given Anr. opportunity to have his complaint enquired into.

Evidently, therefore, the Supreme Court did not hold that in no case a second complaint petition would be maintainable.

In this case, evidently the, complaint petition was dismissed for default. Thus in my opinion, a second complaint petition was maintainable as even in the earlier case a prima facie case has been found. Only because the complaint petition was dismissed for default on the ground of non-filing of the process etc. by the Opp. Party, in my opinion, the same does not debar the Magistrate to take cognizance of the offence again on the self same subject matter. Entertainment of the second complaint petition in such a situation, in my opinion does not amount to recall of an earlier order passed by the learned Magistrate, as was suggested by the learned Counsel appearing on behalf of the Petitioner.

This application therefore, dismissed.