Makhan Singh and Others vs Davinder Singh

Satish Kumar Mittal, J.—Petitioners Makhan Singh and others, who are accused in criminal complaint filed by respondent Davinder Singh under Sections 326/324/328/427/148/149 IPC, have filed this criminal revision challenging the order dated 12.7.1997, passed by Addl.Sessions Judge, Gurdaspur, vide which he has set aside the order dated 30.11.1996, passed by Chief Judicial Magistrate, Gurdaspur, dismissing the complaint of the respondent on the ground that second complaint on the same facts is not maintainable.

The brief facts of the case are that earlier, one complaint was filed by Jagir Singh, brother of the respondent, against the petitioners, which was dismissed in default on 22.12.1993 by Chief Judicial Magistrate, Gurdaspur, when the same was at the stage of preliminary evidence, by passing the following order:-

This case has been taken up at 3.55 p.m. and has been called repeatedly but neither the complainant nor his learned counsel have responded to the call to prosecute this complaint, which is fixed for his remaining preliminary evidence. The absence of the complainant without assigning any reason what-so-ever, to my mind, goes a long way to reveal that he is not keen enough to pursue further this complaint which is thus dismissed for want of prosecution. Records shall be consigned after completion and in due course of time.

Thereafter, on the next day i.e. 23.12.1993, the second complaint was filed by the respondent on his behalf and on behalf of his brother Jagir Singh on the same facts. It was alleged that the injuries were caused by the petitioners to both the brothers. It was pleaded that his brother Jagir Singh had joined hands with the accused party and had gone hostile to the respondent, therefore, he had intentionally absented himself and got the earlier complaint dismissed for non prosecution.

After recording preliminary evidence in the second complaint, the petitioners were summoned under Sections 326/324/323/148/149 IPC. After their appearance, they moved an application for dismissal of the complaint on the ground that the earlier complaint filed by brother of the respondent on the same cause of action and same facts was dismissed on 22.12.1993, therefore, the second complaint on the same facts is not maintainable.

After hearing counsel for the parties, Chief Judicial Magistrate, Gurdaspur, dismissed the second complaint filed by the respondent vide order dated 30.11.1996, while holding that in view of the judgment of this Court in Surjit Kaur v. State of Punjab and Anr., 1988 (1) RCR 169 and Lekhraj Kukreja and Anr. v. Mrs.Rayman, 1991 (3) 217, the second complaint is not maintainable. It has been observed that Jagir Singh had filed the earlier complaint with the consent of respondent Davinder Singh and that is why, the respondent did not file fresh complaint immediately after the occurrence. He filed the present complaint only when the first complaint was dismissed by the Court for non-prosecution. As such, there are no sufficient grounds to entertain the second complaint on the same cause of action and on the same facts with regard to the same occurrence.

The aforesaid order was challenged by the respondent in revision before Addl.Sessions Judge, Gurdaspur. Vide order dated 12.7.1997, the revisional Court allowed the said revision and set aside the order dated 30.11.1996, passed by Chief Judicial Magistrate, Gurdaspur. While following the decisions of the Hon''ble Apex Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, and Bindeshwari Prasad Singh Vs. Kali Singh, , the learned revisional Court held that the second complaint filed by the respondent is maintainable, even on the same facts, and observed as under:-

On going through the observations made in the authorities referred above, it has been clearly made out that the filing of the second complaint is not barred but the second complaint can be filed on special grounds and now it has to be seen whether there is a special circumstances for the entertaining of the second complaint on the same facts. The perusal of the Pramatha Nath Talukdar v. Saroj Ranjan Sarkar''s case clearly shows that a second complaint can be filed if it is shown that the previous order dismissing the complaint was passed on incomplete record. If a complaint is dismissed after the scrutiny of evidence can be allowed to be entertained on the ground that the complainant failed to produce record at the time of the filing of the first complaint then there is no reason why a person should not be allowed to file a second complaint when the previous one has been dismissed in default due to his non-appearance. In the case in hand, the complainant had taken the plea that he alongwith his brother Jagir Singh had received injuries and that the complaint was filed by Jagir Singh alone on behalf of both of them but later on, Jagir Singh connived with the respondents-accused and did not appear in the Court. Davinder Singh has made statement on oath in this respect and at this stage there is nothing to disbelieve the said assertion made by him on oath. Moreover, the accused had not been prejudiced due to the filing of the second complaint because they were not summoned before the dismissal of the previous complaint. Under the circumstances stated above, I am of the opinion that in this case the complainant should have been allowed to continue with the complaint in view of the special circumstances. The learned Chief Judicial Magistrate, Gurdaspur, dismissed the complaint on the ground that second complaint was not maintainable, but did not take into consideration the facts that the second complaint had to be filed by Davinder Singh as his brother got the complaint dismissed in connivance with the respondents-accused party. Accordingly I accept this revision petition and set aside the order of the learned Chief Judicial Magistrate, Gurdaspur and direct the parties to appear before the learned Chief Judicial Magistrate, Gurdaspur on 21.7.1997 for trial.

The aforesaid order has been challenged by the petitioners in the instant revision petition.

I have heard counsel for the petitioners and have gone through the orders, passed by both the Courts below.

It is not disputed before me that the first complaint was dismissed in default at the stage, when it was fixed for preliminary evidence. Undisputedly, the same was not dismissed on merits. The accused were not summoned by that time. The dismissal of the complaint at that stage will fall u/s 203 of the Code of Criminal Procedure. In Pramatha Nath Talukdar''s case (supra), the Hon''ble Supreme Court has observed as under:-

....An order of dismissal u/s 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will 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 the previous proceedings have been adduced.

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Though there was nothing in law to bar the entertainment of a second complaint on the same facts, exceptional circumstances must exist for entertainment of a second complaint when on the same allegations a previous complaint had been dismissed... I accept the view expressed by the High Court that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint has been dismissed u/s 203 of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint, when a previous complaint on the same allegations was dismissed u/s 203 of the Code of Criminal Procedure.

The aforesaid view of the Hon''ble Apex Court has been followed in Major General Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, . Subsequently, in Jatinder Singh Vs. Ranjit Kaur, , the Hon''ble Apex Court observed as under:-

There is no provision in the Code or in any other statute which debar a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second complaint, has taken care to explain that "the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of this Section." However, when a Magistrate conducts an inquiry u/s 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance.

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If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complaint moving the Magistrate against with a second complaint on the same facts. But if the dismissal of the complaint u/s 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Sections 203. The controversy was settled by this Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, A majority of Judges of the three Judges Bench held thus (Para 48).

An order of dismissal under S.203, Criminal Procedure Code, 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 the previous proceedings, have been adduced. 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.

S.K.Das,J. (as he then was) while dissenting from the said majority view had taken the stand that right of a complainant to file a second complaint would not be inhibited even by such considerations. But at any rate the majority view is that the second complaint would be maintainable if the dismissal of the first complaint was not on merits.

Again, in Mahesh Chand Vs. B. Janardhan Reddy and Another, Apex Court Judgments 83 (S.C.): 2003(1) Criminal Court Cases 250 (S.C.): (2003) 1 SCC 734, the question of filing the second complaint on the same facts came up for consideration before the Hon''ble Apex Court. While relying upon the decision in Pramatha Nath Talukdar''s case (supra), the Hon''ble Apex Court held as under:-

Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate u/s 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complaint in previous matter upon a full consideration of this case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.

Recently, in Poonam Chand Jain and another v. Fazru, 2005(1) ACJ 351 (S.C.): 2005(1) Cri CC 801 (S.C.): 2005 SCC (Cri) 190, again the question of maintainability of second complaint on the same allegations after dismissal of the first complaint came up for consideration before the Hon''ble Apex Court. In that case, it was held that if the previous complaint is dismissed without assigning any reason, the Magistrate u/s 204 of the Code may take cognizance of an offence on the second complaint and issue process if there is sufficient ground for proceeding. But the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced.

In view of the aforesaid legal position, m I do not find any illegality in the impugned order, passed by the learned Addl.Sessions Judge, Gurdaspur, in which it has been categorically held that the previous complaint was not dismissed on merit and there were sufficient grounds for entertaining the second complaint.