Harish Chand Mittal and Another vs Laxmi Devi

C.A. Rahim, J.—This application u/s 482, Code of Criminal Procedure has been filed to quash the criminal proceeding arising out of Criminal Case No. 454 of 1982 u/s 418/420, I.P.C.

A petition complaint was filed against the applicants by the Respondent u/s 418/420, I.P.C. Process was issued and the accused persons appeared and thereafter on 13.4.1982 the complainant was absent. The date was fixed for evidence and in absence of the complainant, learned Magistrate discharged the accused persons on the date. A fresh complaint was filed and by an order dated 18.5.1982 summons was issued against the accused persons u/s 420, I.P.C. and hence this application.

Learned Counsel has submitted that the order-sheet dated 18.5.1982 discloses that no evidence was adduced u/s 202 Code of Criminal Procedure and no fresh material was supplied. He has further submitted that the order is bad in law in view of the fact that the learned Magistrate has no jurisdiction to issue process on a fresh complaint on the self-same incident. He has referred the case of Maj. Gen A.S. Gauraya and Anr. v. S.N. Thakur 1986 (XXIII) ACC 346 , 348, it has been held that the order of dismissal of a complaint by a criminal court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to its file by revoking its earlier order, dismissing it for non-appearance of the complainant, and proceed with, when an application is made by the complainant to revive it and second complaint is permissible in law if it could be brought within limitation imposed by this Court in the case of Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . In that decision by majority judgment it was held--that 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 previous order was passed on 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 record in the previous proceedings, have been adduced. (Para 48).

In Pramatha Nath case (supra), the issue was that when a complaint was dismissed by the then Metropolitan Magistrate, Calcutta u/s 203, Code of Criminal Procedure, whether it could be reviewed or fresh complaint is required to continue the proceeding. So the decision that it can be entertained only in exceptional circumstances can only be attracted when a fresh complaint is lodged after the previous one was dismissed u/s 203, Code of Criminal Procedure.

The said decision was applied by Supreme Court in Maj. Gen.''s case (supra) and it was held:

Section 249 of the Code of Criminal Procedure enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said Section are satisfied. Section 256(1) of the Code of Criminal Procedure enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by criminal court due to the absence of a complainant is a proper order.

In that paragraph, it has also been stated that the second complaint is permissible if it is brought within limitations imposed by this Court in Pramatha Nath case (supra). In Maj. Gen. case (supra), the prosecution was started for an offence punishable under the provision of the Mines Act and its Regulations. The learned Magistrate issued summons to the accused but on the date fixed, neither the complainant nor the accused persons were present. Therefore, the learned Magistrate dismissed the complaint for default and for want of prosecution.

Dismissal of complaint u/s 203, Code of Criminal Procedure is made when the complainant fails to provide sufficient grounds for proceeding against the accused persons under Sections 200 and 202, Code of Criminal Procedure in this circumstance, the learned Magistrate has to go into the merits of the case and to assess whether there are grounds for proceedings. If the complainant fails to satisfy the Magistrate and if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint after recording reasons thereof.

If the Magistrate feels that the complainant has been able to provide materials for proceedings, the Magistrate shall issue summons u/s 204, Code of Criminal Procedure and direct the accused to appear on a particular date. After his appearance, if it is a summons case triable by the Magistrate, procedure as laid down under Chapter XX of the Code of Criminal Procedure will be applicable and in that case, if the complainant does not appear, the Magistrate shall acquit the accused u/s 256 Code of Criminal Procedure, unless on some reason, he thinks it proper to adjourn the hearing of the case, but if trial is proceeded under Chapter XIX, Code of Criminal Procedure for trial of warrant cases and the complainant is absent after the appearance of the accused and when no charge is framed, the accused persons will be discharged u/s 249, Cr, P.C. In cases where the accused persons are discharged u/s 249, Code of Criminal Procedure or 256, Code of Criminal Procedure, there was no occasion for the Magistrate to go into the merits of the case. This situation is otherwise when the Magistrate dismisses the complaint u/s 203, Code of Criminal Procedure. In Pramatha Nath case (supra), there is no discussion about the revival of the cases when the accused persons are discharged or acquitted u/s 249 or 256, Code of Criminal Procedure. The said decision is limited where the complaint is dismissed u/s 203, Code of Criminal Procedure. But the Supreme Court in its wisdom has applied the said provision also to cases where recourse to Sections 249 or 256, Code of Criminal Procedure, was taken. Limitations laid down in Pramatha Nath case (supra) is, therefore, applicable to the instant case where accused are discharged u/s 249, Code of Criminal Procedure. In Pramatha Nath case (supra) it has been held:

It will be entertained only in exceptional circumstances as for example where previous order was passed on an incomplete record or misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not have been brought on record in the previous proceedings, have been adduced.

In the instant case, Magistrate discharged the accused due to the absence of the complainant. It is apparent that the said order was not passed after going into the merits of the case. In that circumstance, the Magistrate should have adjourned the case for the appearance of the accused and also for the appearance of the complainant. It cannot be said that substantial justice was extended to the complainant who appeared before a court with certain grievance and he was knocked out on technical grounds. In Pramatha Nath case (supra), the question was considered by a Full Bench of Calcutta High Court in Dwarika Nath Mondul v. Beni Madhab Banerjee ILR Cat 652 and it was held:

There is no bar to further proceedings under law. and, therefore, a Magistrate to whom a complaint has been made under such circumstance is bound to proceed in the manner set out in Section 200, that is to examine the complainant and unless he has reason to distrust the truth of the complaint or for some other reasons expressly recognised by law such as if he finds that no offence has been committed he is bound to take cognizance of the offence on a complaint and unless he has good reason to doubt the truth of the complaint he is bound to do justice to the complainant to summon his witnesses and to hear them in the presence of the accused.

The spirit of the decision is that unless the truth of the complaint is not established or any doubt occurs during process, then and then only the court should refuse to take cognizance otherwise to extend its area to issue process. The court should not drag out a person begging for justice and shut its door on grounds appear to be too technical and some times unjust. In the instant case, the veracity of the allegation was not tested and was nipped in the bud without ascertaining the contention of the complainant whether he had intention to carry it on or had intention to withdraw. Per majority decision in Pramatha Nath case (supra), it is recorded whether previous order was unjust, manifestly absurd or foolish a second complaint is maintainable. The aforesaid circumstances indicate that the complaint was unjustly terminated by discharging the accused for which a second complaint is legitimately maintainable. Accordingly, I find that when fresh complaint was filed by the complainant and process was issued against the applicants, the order is just and proper. I do not find any infirmity in accepting the second complaint and issuing process thereon. I do not find any reason for invoking the inherent power of the court in the instant case.

Being devoid of merit the application filed u/s 482, Code of Criminal Procedure is dismissed.