H. Taneja alias Haris Taneja vs State

A.P. Bhattacharya, J.—This Rule was obtained by the Petitioners who are accused and are being prosecuted in respect of an offence before a Metropolitan Magistrate and the instant Rule has been obtained against the order of Shri K.J. Majumdar, Metropolitan Magistrate, Fifth Court, Calcutta, holding that the instant complaint filed by the opposite party No. 2 which was a second complaint to the Magistrate was maintainable. On behalf of the Petitioners objection was taken to the maintainability of the complaint on the ground that this is a second complaint on identical facts by the opposite party No. 1 and as such, the Magistrate has no jurisdiction to pass orders thereon.

The relevant facts are opposite party No. 1 previously filed a complaint in the Court of the Metropolitan Magistrate which was registered as complaint case No. C. 76 of 1975. The Magistrate issued summons on the accused persons, namely, the present Petitioners in this Rule. The learned Magistrate observed that the cognizance taken in that case was bad in law in view of a Division Bench decision of this Court in The Public Prosecutor (A.P.) Vs. Patan Mahaboob Valli Khan, . Under the aforesaid circumstances the complainant filed a petition to the Magistrate to withdraw the petition of complaint with liberty to institute fresh complaint on the same ground. The Metropolitan Magistrate on April 8, 1975, passed the following order:

Accordingly, let the present proceeding be dropped without prejudice to fresh complaint if any be filed and the accused who appeared this day to stand released.

This was the order passed by the Magistrate on the previous complaint. Therefore, the present petition of complaint has been made after about four months and the Magistrate has passed the order to which I have referred which is impugned in this Rule.

The only point which arises for decision in this Rule is whether a second complaint in the circumstances of the case can be maintained lawfully.

Mr. Banerjee in support of the Rule contends that the second complaint is not maintainable as the earlier complaint had been dismissed. The order of the Magistrate which I have quoted above, according to Mr. Banerjee, is not contemplated under any of the provisions of the Code of Criminal Procedure. The Magistrate can pass order only u/s 245 of the Code of Criminal Procedure as it was a warrant case and the order must be construed as one passed thereunder. It is, therefore, an order discharging the accused Petitioners. That being so, his further contention is that the second petition of complaint is not maintainable. Mr. Banerjee relies upon a decision of the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . The Supreme Court has considered under what exceptional circumstances a second petition of complaint would lie upon the same facts. Paragraph 48 of the judgment has particular bearing on the facts of the instant case. It has been observed as follows:

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 or foolish or where new facts which could not with reasonable diligence have been brought on the record in previous proceedings, have been adduced.

It has been further held that a fresh complaint can be entertained where there is manifest error or manifest miscarriage of justice or where fresh evidence is forthcoming. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. This is the burden of the decision to which Mr. Banerjee has referred. In the instant case, the facts disclosed in the first petition of complaint have not at all been enquired into. The question of introduction of new facts does not, therefore, arise. All the facts appearing in the second petition of complaint are new facts because there had been no enquiry on the identical facts. Moreover, the order of the Magistrate, according to the criticism levelled against it by Mr. Banerjee, is unheard of and has no statutory sanction. If that is so, the order is not only unjust but manifestly absurd order. In that view of the matter, it does not come within the purview of the Supreme Court decision and brings the second complaint within the mischief of the principles to which I have referred. The Court in such circumstances which are certainly exceptional can entertain a second complaint. I do not, however, say that the order of the Magistrate is that unheard of as Mr. Banerjee calls it. Such an order is contemplated in exceptional circumstances though it is not specifically provided in the statute. In this connection, I may refer to a case reported in Nagraj Vs. State of Mysore, , where the Supreme Court was considering a case before a Magistrate where there was no sanction lawfully given. In such a case, the Supreme Court has observed that the Court is not competent to pass any orders except an order that the proceedings be dropped and the complaint be rejected. Such an order as appearing in this case cannot, therefore, be said as an order which is not heard of. Be that as it may, the position with regard to the first complaint is very clear. The complainant asked for an order of the Court to allow him liberty to institute fresh complaint. Obviously, therefore, he was not proceeding with the previous complaint. The Magistrate allowed that prayer and gave the complainant liberty to make a fresh complaint without prejudice and such an order can only be read as one rejecting the petition of complaint in the circumstances of the case. That being so, the previous petition of complaint was not considered at all by the Magistrate therein.

The second complaint which is filed under the above circum stances is the only petition of complaint which can be enquired into by the Magistrate. The order impugned in this Rule is quite in accordance with law and the Court has jurisdiction to proceed with the hearing of the second complaint. Mr. Banerjee has suggested that on the facts of this case his clients might be prejudiced because of the delay of filing of the complaint. These are matters which can be agitated before the Magistrate if they are of any substance.

The Rule is, accordingly, discharged and the revision petition dismissed.