Awadh Narain and Others vs Kripa Shankar Mishra

B.L. Yadav, J.—This revision u/s 397/401 of the Code of Criminal Procedure, 1974 (for short the Code) is directed against the order dated 23.06.1981 passed by Special Judicial Magistrate in Criminal Case No. 96 of 19M, Kripa Shankar Mishra v. Awadh Narain Under Sections 323, 504, 506, 448 of the Indian Penal Code.

It appears that a complaint was filed Under Sections 323, 504, 506, 447 IPC by the opposite party against the applicants on 24.06.1980 and that complaint was dismissed on the same day i.e. on 24.06.1980 in absence of the complainant. The complainant filed another complaint stating these facts and statements u/s 202 of the Code were recorded. The process was also ordered to be issued u/s 203 of the Code. On 19.02.1981 the complainant along with accused was present and that was the date fixed for adducing evidence on behalf of the complainant but the counsel for the complainant did not appear and the complainant did not make any application for adjournment. The Magistrate closed the evidence as the complainant did not adduce any evidence and passed an order of discharge u/s 245(2) of the Code. Again a lllrd complaint was filed on 19.02.1981 stating all the facts including dismissal of the complaint and purported order of discharge u/s 245(2) of the Code. An objection appears to have been raised on behalf of the opposite parties (present applicants) that the IIIrd complaint was not maintainable, but that objection was ruled out by the impugned order against which present revision is directed.

Learned Counsel for the applicants urged that on the same cause of action or on the same facts, IIIrd complaint was not maintainable as after dismissal of the complaint u/s 203 or purported order of discharge u/s 245(2) there was no fresh fact nor was any special circumstance. Reliance was placed on Muralidhar Kunar Vs. Bhagaban Kunar, , Ram Kissen Shaw and Another Vs. Sm. Chandravati Shaw and Another, and Rajendra Prasad Singh Vs. State, .

Learned Counsel for the opposite party No. 1 and Sri Harihar Prasad Tripathi, learned Counsel for the State on the other band urged that there was no bar in entertaining second or third complaint. In case the accused had already been discharged or even if the complaint was dismissed u/s 203 of the Code and the order for issuing process was not passed as there was no sufficient ground to proceed, in that event also fresh complaint can be filed under special or exceptional circumstances. The reliance was placed on Bindeshwari Prasad Singh Vs. Kali Singh, .

Having heard learned Counsel for the parties point for determination is as to whether Ilird fresh complaint on the same facts but under'' special circumstances could be entertained ? No doubt if an accused has been acquitted he cannot be prosecuted or convicted again for the same offence but where a criminal complaint has been dismissed either u/s 203 or any purported order of discharge u/s 245(2) has been passed, there is no specific bar under the Code for entertaining a second or third complaint on the same facts under special circumstances. In the instant case the allegations as regards the offence under Sections 323, 504, 506, 447 IPC were the same but first complaint appears to have been dismissed the same day when it was filed, in the absence of the complainant. This also appears to be an unique circumstance. Similarly when the second complaint was filed, process was issued u/s 203 after considering the statement recorded u/s 202 but on 19.02.1981 the complainant was present but his counsel was not present and the complainant did not make any application for adjournment. That appears to be under the impression that his counsel might have turned up. An order of discharge u/s 245(2) of the Code was passed discharging the applicants but that appears to be an erroneous order inasmuch as Section 245 occurs under Chapter XIX which deals with trial of warrant cases by Magistrates in cases instituted on a police report and the cases instituted otherwise than on police report. In the instant case the offence involved was not in a case of warrant hence provisions of Section 245 of the Code were not applicable and the Ilird complaint pointing out special circumstances as enumerated above was filed. Under the circumstances of the case there was no bar under the Code in entertaining fresh complaint (tliirdj under special circumstances and the purported order of discharge was not an order of acquittal.

In Muralidhar Kunar Vs. Bhagaban Kunar, , relied upon by learned Counsel for the applicant it was held that fresh complaint on the same facts under special circumstances could be entertained. In view of the facts of the present case this case is of no assistance to the applicants.

Similarly Rajendra Prasad Singh Vs. State, was also of no assistance to the applicants inasmuch as in that case a number of authorities including Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, were considered and it was held that even after dismissal of complaint on the ground that there was no sufficient ground to proceed, against the accused, there was no bar in entertaining second complaint on the same facts but -it will be entertained only in exceptional circumstances.

In Ram Kissen Shaw and Another Vs. Sm. Chandravati Shaw and Another, it was held that dismissal of a complaint u/s 203 is no bar for entertaining second complaint but there must be some cogent and com- pelling reason for the second complaint. This case was, rather against the applicants.

In Bindeshwari Prasad Singh Vs. Kali Singh, , relied upon by the opposite parties it was pointed out by their Lordships of Supreme Court that a second complaint can lie only on new facts or it can lie even on same facts if special circumstance is made out. I am of the view that the present case stands on better footings. In the instant case the first complaint was dismissed the same day it was filed on account of absence of the complainant. It was a fact that even statements of witnesses under Sections 200 and 202 were recorded. The second complaint was filed and process was issued after considering the statements of witnesses that there was sufficient ground for proceeding. 19-2-81 was the date fixed for evidence by complainant, his counsel did not appear. The complainant failed to make any application for adjournment. He appears to be under the impression that his counsel would appear but the com plaint was dismissed u/s 245(2) purporting to be an order of discharge in a warrant case instituted otherwise than on police report. The offence in the present case is indicative that it was not a warrant case.

''Warrant case'' has been defined u/s 2 (Two) (x) of the Code and it means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. ''Summons case'' has been defined u/s 2 (Two) (w) of the Code which means a case relating to an offence not being a warrant case. In brief the warrant case means a case relating to an offence punishable with minimum imprisonment for a term exceeding 2 yeais. In the instant case, offence u/s 323, was punishable with imprisonment for one year. Offence u/s 504/506 was punishable with imprisonment for 2 years and offence u/s 447 was punishable with imprisonment for a period of 3 months only, therefore, the offences could not be said to be covered by the definition of warrant case and provisions of Section 245(2) under which the order of discharge was passed, was not applicable hence that order was manifestly erroneous and the lllrd complaint under these circumstances would constitute certainly special circumstances of the present case. Some special circumstances may be enumerated as follows:

Where the earlier complaint was dismissed on the basis of incomplete record or misunderstanding the nature of the complaint.

Manifest error.

Miscarriage of justice.

Adducing of new facts, which the complainant could not discover despite due diligence.

In the instant case I am of the view that the purported order of dis charge or dismissal of complaint u/s 245(2) of the Code was passed without understanding the nature of the complaint and it was a case covered by manifest error and miscarriage of justice. Under these circumstances the complainant could not be blamed and there was no bar in entertaining a denovo complaint, may be third one. Much emphasis was laid by the learned Counsel for the applicant that the third complaint cannot be entertained. But under law there is no such bar for entertaining third complaint if some special circumstances are there or it is filed on new facts. I need not emphasize that the principles of law do not work like mathematical or scientific formulaes nor the same precision or accuracy can be expected. In other words the law cannot be expected to be technically correct. It must often content itself with being practical.

I do not find any mistake in the impugned order. In the result present revision fails and is dismissed. As the matter has dragged on for too long, what is required is expedition. Office is directed to send back the record of lower court immediately.