Muralidhar Kuanar vs Bhagaban Kuanar

Das, J.—The opposite party lodged an information before the police alleging that the Petitioner and 11 others committed a dacoity in his house on 11-6-1964. After investigation the police submitted final report saying that the case is true, but the evidence insufficient. Therefore the opposite party filed a complaint which was registered as case No. 166/64 and sent for enquiry u/s 202, Code of Criminal Procedure to Sri D. Mohanty, Magistrate, 1st class, Anandapur. In course of the said enquiry, the wife of the opposite party was examined. But a petition was filed by the complainant saying that the case had been settled amicably and that he does not want to proceed with the case. The Magistrate thereafter recommended to drop the proceeding as there was not sufficient evidence to make out a prima facie case against, the persons complained. On receipt of the enquiry report, the Sub-divisional Magistrate dismissed the complaint on 20-10-1964, u/s 203, Criminal Procedure Code. Thereafter on 24-12-1964 the complainant filed a fresh complaint in respect of the very same occurrence against the very same persons and that complaint was registered as case No. 235 of 1964 in the Court of the S.D.M., Anandapur and was again sent for enquiry u/s 202, Code of Criminal Procedure to Sri D.P. Mohanty, Magistrate, 1st Class. In the second enquiry after examining some more witnesses, Sri Mohanty submitted a report saying that a prima facie-case had been made out against some of the accused persons including the Petitioner. The learned Sub-divisional Magistrate by his order dated 20-4-1965 summoned the Petitioner u/s 395/L 14, Indian Penal Code and others under Sections 147, 315 sited 352, Indian Penal Code. It is against this order of the learned Sub-divisional Magistrate, the Petitioner alone has come up with this revision.

The main contention of the learned Counsel for the Petitioner is that in view of the dismissal of the previous complaint, a fresh complaint on the very same facts is not entertainable except on exceptional circumstances which have not been made out in this case and as such the proceedings should be quashed. The position of law is well-settled that the dismissal o a complaint u/s 203, Code of Criminal Procedure cannot be pouted with on order of acquit, tal so that a fresh complaint will he barred u/s 403, Criminal Procedure Code. There is nothing in law against entertainment of a second complaint on the same facts on which an accused had already been discharged. The legal position is equally well-settled that although a previous order dismissing the complaint u/s 203 is no bar for the institution of a fresh complaint, still a fresh complaint in respect of the same offence should not be entertained unless there are exceptional circumstances.

The Bombay High Court in Hansbai v. Anand took the view that unless the Magistrate is satisfied that some additional evidence is forthcoming, of which le complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest carriage of justice, the Magistrate cannot be said to have sufficient ground for proceeding with the fresh complaint. It cannot be said to be in the interests of justice that a party who has obtained a decision from a Court after a full consideration of his case, should be given an opportunity to seek from the same Court or another Court of co. ordinate jurisdiction, a different decision on the same facts and on the same evidence. The proper remedy for the complainant, who is dissatisfied with an order of discharge passed u/s 253(1) is to move the superior Court to set it aside.

Tree same view has also been expressed by the Patna High Court in Ram Narain Chaubey Vs. Panachand Jain, . It was held that although previous order of dismissal of a complaint u/s 203 is no bar to the institution of a fresh complaint against the same accused, still a new complaint in respect of the same offence should not be entertained unless there are exceptional circumstances, such as where new facts which could not with reasonable diligence have been brought forward in the previous proceeding are adduced or there has been some manifest error in the previous proceeding or the previous order was passed on an incomplete record or understanding of the nature of the complaint. The Lahore High Court in AIR 1930 879 (Lahore) , and the Madras High Court in Doraiswami v. Subramani A.I.R 1918 Mad. 484 also took the same view.

A similar question whether a second complaint is permissible and if so under what circumstances, came up for consideration before the Supreme Court in Pramathnath v. Saroj Ranjan AIR 1932 S.C. 876. Their Lordships reviewed the decisions of different High Courts of India, and 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 can be entertained only in exceptional circumstance such as where the previous order was passed on an incomplete record or on a understanding 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 proceeding have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant on a full consideration of his case, he or any other person should be given a Plethora opportunity to have his complaint enquired into. On the question of taking fresh evidence, it was held that:he correct position of law is that it should be such that it could not with reasonable diligence have been adduced. It cannot be the law that the complainant may first place before the Magistrate, some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on. Thus, the Magistrate cannot act on true fresh complaint as a matter or routine, hut shall examine about the existence of any exceptional circumstances which necessitated the second complaint. What exactly are the exceptional circumstances, is rather difficult to list out exhaustively and any such list may at best be illustrative. The exceptional, circumstances so far laid down by the, authorities ate: (1) manifest error; (2) carriage at justice; (3). Adducing, of new facts which the complainant could not have discovered despite due, diligence, and (4) where the previous order was passed on an incomplete, record or misunderstanding of the nature of the complaint.

Keeping in view these principles let us examine if any such exceptional circumstances have been made out in this case. We are, concerned here with the scope of Sections 202 anti 203; Criminal Procedure Code. The scope of enquiry u/s 202 is limited to finding out the, truth or otherwise of too complaint in order to determine whether process should issue or not. Section 203 lays down what materials are to be considered for the purpose. At that stage the Magistrate has to form his judgment on the basis of the statement of the complainant and his witnesses and the result of the investigation or enquiry if Well the first complaint was sent to the Magistrate for enquiry u/s 202, the complainant examined his wife who claimed to be an eye-witness to the occurrence, but did not examine any other witness on the ground that there is talk of a settlement in the village. The Magistrate held that though the evidence disclosed that some offence was committed, he took the view that in the arsenous of any corroborative evidence, a prima facie case was not made out. As the complainant was unable to proceed with the case, he recommend the case to be dropped. On the basis of the said report the S.D.M. by order dated 26-10-1964 dismissed the complaint u/s 203 Criminal Procedure Code. Thus, the first dismissal, was not based upon any determination of the question whether there was sufficient ground" to proceed as contemplated u/s 2031 Criminal Procedure Code but merely because the enquiring officer recommended to do the proceedings. The complainant'' again filed a fresh complaint on 24-12-1964 wherein he alleged all the circumstances for which he did not proceed to examine his witnesses. This time the S.D.M. again sent for an enquiry to a Magistrate and there the complainant examined his witnesses and the enquiring Magistrate found a prima facie case against some of the accused persons; and on the basis of this report, the S.D.M. on 20-4-1965 summoned the accused persons. It is apparent that the previous complaint was dismissed on the basis of an incomplete record and has resulted in the carriage of justice, particularly when the first enquiring Magistrate found that the evidence disclosed the commission of some offence though he recommended the dropping of the proceedings mainly on the ground that the complainant had filed a petition saying that the matter was going to be settled in the village. Thus, a case of manifest injustice appears to have been made out in this case which may be taken as an exceptional circumstance for entertaining a second complaint. Unfortunately, the S.D.M.J this order dated 20-4-1265 has, not dealt with any of the circumstances which undoubtedly was his duty to do which actuated him to take action on the second complaint even, though the first complaint was dismissed.

I shall not be taken to have expressed any opinion about the merits of the case at this stage since I am merely concerned with the question whether the entertainment of the second complaint was justified under the circumstances of this case.

There is no merit in this application and the revision is dismissed.