Lokenth Auddy vs Ashim Kumar Mallik

Amitava Dutta, J.—This Revisional Application is directed against the orders dated 25.3.1980 and 31.3.1980 passed by Sri J. K. Mitra, learned Additional Chief Metropolitan Magistrate, Calcutta in case No. C|90|80 issuing process against the petitioner and another u/s 448|504|323 of the Indian Penal Code. On 24. 11. 1978 the opposite party filed a petition before the learned Magistrate alleging commission of offences by the petitioner and another u/s 323|448|504 IPC with a prayer for ordering investigation into the alleged offences by the police u/s 156(3) of the Code of Criminal procedure. The learned Magistrate allowed the prayer and directed the police to investigate the case Subsequently the police after completion of investigation submitted a report to the effect no evidence was forth coming against the persons complained against and prayed for their discharge on 28 6.1979. The learned Magistrate accepting the police report discharged the accused persons including the petitioner. Later the petitioner filed a complaint u/s 500 I P.C. for defamation against the opposite party on 18 1 80 and on such complaint the learned Magistrate issued process against the Opposite patty. Subsequently on 25.3.80 the opposite party filed a petition of complaint against the petitioner alleging commission of offences under sections 448/504/323 IPC. The learned Magistrate on receiving such complaint examined the complainant and his witness on 25 380. and thereafter on the prayer of the complainant fixed the case on 31 3 80 for further hearing and directed the putting up of the record of the earlier case which ended in discharge of the petitioner. On 31.3.80 the learned Magistrate after considering the record of the earlier case and the evidence adduced on 25 3 80 issued process against the petitioner and another u/s 448/504/323 I.P.C

It is contended by the learned advocate for the petitioner that the learned Magistrate has erred in not acting simultaneously under sections 200 and 204 of the Code as he proceeded u/s 200 of the Code on 25.3.80 and thereafter u/s 204 of the Code on 31.3 80. It is further submitted on behalf of the petitioner that the learned Magistrate was not competent to issue process on the subsequent complaint of the opposite party as in the proceeding arising out of the earlier complaint of the Opposite party making exactly the same allegations against the petitioner he was discharged on 28 6.79 on consideration of the police report of investigation.

In my view, these contentions raised on behalf of the petitioner are without force. The learned Magistrate after examining the complainant and his witness on 25.3 80 was competant to postpone the issue of process and make further enquiry apparently u/s 202 of the Code before taking his decision in the matter of issue of process and that is what he did by directing the putting up of the record of the earlier case on 30.3 80 and taking decision after considering the materials in that record and the evidence already taken on 25.3.80 although there is no specific mention in the order of the learned Magistrate that he was postponing the issue of process to make further enquiry into the complaint u/s 202 of the Code.

The fact that the petitioner was discharged by the learned Magistrate on acceptance on the police report of investigation in the earlier case does not preclude him from taking cognizance of the offences in question on the petition of complaint filed by the Opposite party on 25.3.80 in the earlier case the learned Magistrate did not take cognisance of the offences and directed the police to investigate into the offences in question u/s 156(3) of the Code. He discharged the petitioner as the police reported that there was no evidence. The order of discharge does not amount to an acquittal not to a final order. It is hot a judgment although it is a judicial order. In spite of such order of discharge, the accused can be proceeded against for the same offences on the basis of a complaint lodged by the opposite party and the evidence adduced by him disclosing sufficient grounds. This view is supported by the decision of the Full Bench of the Delhi High Court in the case of Narayan Vs. State repotted in 1972 CLJ 1446.

It is further contended on behalf of the petitioner that as the offences u/s 323 and 448 are pusishable with the imprisonment for one year and it has been alleged in the complaint filed by the Opposite party that the alleged offences were committed on 21.11.1978 taking cognisance by the learned Magistrate of the offences u/s 323/448 IPC in relation to the petitioner is barred by limitation in view of the provisions of section 468(1) (b) read with section 469 of the Code. In my view, this submission is not well founded in view of the provisions of sub section (3) of section 469 of the Code which provides that for the purposes of section 468 the period of limitation in relation to offences which may be tried together shall be determined with reference to the offence which is punishable with the more severe punishment or as the case may be the most severe punishment. In the present case the alleged offence u/s 504 I.P.C. is punishable with imprisonment for two years. It cannot therefore be said that taking of cognizance by the learned Magistrate of the offences under sections 323/448/504 I. P. C. is barred by limitation.

In the result the application fails and is dismissed. The Rule is discharged. Let the records be sent down to the learned Magistrate within a month.