Krishan Kumar vs Sunil

H. K. Sandhu, J.

Dr. Krishan Kumar has filed this petition under Section 482 of the Code of Criminal Procedure for quashing complaint Annexure P1 summoning order Annexure P2 and subsequent proceedings arising out of the complaint Annexure P2.

As per case of the petitioner, the respondent filed a complaint against him and his mother under Sections 406, 489A and 506 of the Indian Penal Code in the court of Chief Judicial Magistrate, Rohtak copy of which was Annexure P3. The complaint was fixed for recording the statement of the complainant on 4th May, 1991 but as the complainant did not appear in the court on that day the complaint was dismissed vide order dated 4.5.1991 Annexure P4. The respondent filed another complaint on the same facts before Additional Chief Judicial Magistrate, Rohtak and on the basis of the second complaint Annexure P 1, the petitioner and his, mother were summoned to stand trial for the offences under sections 406/498A, and 506 of the Indian Penal Code as per order dated 24th Jan, 1992 Anne P2. The respondent deliberately concealed the factum of dismissal of her previous complaint Annexure P3 by the Chief Judicial Magistrate, Rohtak. The allegations in both the complaints were exactly the same and this second complaint was not maintainable when the first complaint was dismissed for nonappearance of the respondent. The respondent did not file a revision for getting the order Annexure P4 set aside. The subsequent complaint and the summoning order were abuse of the process of the court and were liable to be quashed. Hence the petition.

In the return filed by the respondent this fact was not of denied that the previous complaint of the respondent was dismissed for want of prosecution but it was contended that complaint was dismissed on the first date of hearing and in fact Chief Judicial Magistrate had no, jurisdiction to take proceedings in that complaint as the Ilaqa Magistrate was the Additional Chief Judicial Magistrate. No preliminary evidence was recorded on the earlier complaint and the court had not taken cognizance of the offence. The second complaint was thus maintainable.

Have heard Mr. Varinder Singh learned counsel for the petitioner and Mr. Surinder Singh, learned counsel for the respondent and have perused the record.

It was argued on behalf of the respondent that the first complaint Annexure P1 was dismissed for nonappearnace of the respondent on the first hearing of the case and as the cognizance of the offence had not been taken and the offence was not compoundable, the second complaint was maintainable on the same facts. The learned counsel for the petitioner on the other hand contended that cognizance of the first complaint had been taken by the court and it was dismissed as the respondent did not appear in court when her statement was to be recorded. No special circumstances were mentioned while filing the second complaint which could justify the institution of the same.

The respondent produced certified copies of the orders passed in the first complaint Annexure P2 which show that on 24.4.1991 when the complaint was presented in court by the respondent, the trial court ordered its registration and adjourned the same for recording the statement of the respondent on 4th May, 1991. On the date fixed the case was called many a time but as the respondent did not appear, it was dismissed in default. The order dated 24.4.99, shows that the court had taken cognizance of the offence and the second complaint in these circumstances could be entertained only in exceptional circumstances. In the case of Pramatha Nath Talukdar and another v. Saroj Ranjan Sarkar, 1962(2) Supreme Court Appeals 53 it was held that :

"An order of dismissal of a complaint under Section 203 of the Criminal Procedure Code, 1898 is not a bar to the entertainment of second complaint on the same facts and allegations, but such a second complaint can be entertained only in exceptional circumstances such as passing of the order on an incomplete record or on a misunderstanding of the nature of the complaint or was manifestly absurd, unjust or foolish or where new fact which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced."

The learned counsel for the petitioner submitted that while filing the second complaint Annexure P1, the respondent did not disclose the fact that her first complaint had been dismissed in default by the Chief Judicial Magistrate nor she mentioned any special circumstances justifying the filing of the fresh complaint on the same facts and in these premises, the second complaint was liable to be quashed. In support of his argument, he placed reliance on the case of Darshan Singh v. Manjit Kaur, 1992(1) Recent Criminal Reports 621 . In this case first complaint was dismissed in default and this fact was not disclosed in the second complaint nor special circumstances were given which could justify the filing of fresh complaint and the complaint was thus quashed.

A perusal of the complaints Annexure P1 and P3 shows that the second complaint was filed on the same facts and was rather a true copy of the first complaint. This fact was not disclosed that earlier complaint was dismissed for nonappearance of the complainant and no exceptional circumstance was mentioned which could furnish valid ground for filing of the second complaint. The second complaint was thus a gross of abuse of the process of the court and was not made with the object of furthering the interest of justice.

As a result I accept this petition, quash the complaint, Annexure P1, summoning order Annexure P2 and all subsequent proceedings arising from the complaint.