Pritam Singh vs Sardar Rajinder Singh & Anr.

This petition under Section 561A of the Criminal Procedure Code for quashing the proceeding in a complaint under Section 420 R: P C,.

initiated by the learned 1st Additional Munsiff, Judicial Magistrate 1st Class, Srinagar, arises in the following circumstances.

The respondent No. 1 had filed a complaint under Section 420 R. P, C., against the petitioner and respondent No. 2 in the Court mentioned

above. The petitioner and respondent No. 2 (accused persons) appeared in the court and the respondent No. 1 (complaintant) was directed to

lead his evidence, The respondent No. 1 as complaintant in the case had deposited witness expenses for summoning of his witnesses. The

witnesses did not get their statements recorded in the court for some time. On one hearing the complaint too was not present and the court

dismissed the complaint on 1271979. The court showed the order of discharge as acquittal On 1771979 a fresh complaint was instituted by him

and the Court issued a process against the petitioner and respondent No 2 and accused persons

3 The petitioner contends in this petition that fresh proceedings could not be intiated in the complaint on the same facts, as the dismissal of the

complaint operated as an acquittal under Section 403 Cr P C

I have heard the learned counsel for the petitioner, Nemo appeared or behalf of the respondents.

The Learned counsel for the petitioner has assailed the impugned order, issuing process against the petitioner, on the following grounds:

That the learned Magistrate while dismissing the previous Complaint has acquitted the accused presons and hence fresh complaint is barred under

section 403 P. C. This argument is patently without any force. The bar of section 403 Cr. P. C. comes into operation only when a full trial of the

offence takes place. This Section embodies within narrow limits the principles of the English Common Law, please of autrefois convict (formerly

convicted) and autrefois acquit it is essential that there must have been a previous trial of the offence by a court having jurisdiction terminating.

In the present case the trial had not even commenced when the complaint was dismissed. The trial starts in a warrant case after the charges are

framed against an accused. The I learned Magistrate has wrongly shown the order of discharge as an order of acquittal. Perhaps he was not

knowing the distinction between the two, and if it is so, it is really unfortunate. He should have passed an order under 'Section 259 Cr P. C,

dismissing the complant for non prosecution, as the complaintant was absent. As a matter of fact the said order is to be construed accordingly and

will operate only as discharge and not as acquittal.

That the order of the Magistrate dismissing the complaint will be governed by section 253 Cr. P.C. and can be set aside only in accordance with

the provisions ""f Sec. 436, This arugment of the learned counsel for the petitioner is also with any force. The order in question was not an order

under Section 253 Cr. P. C. SubSection (1) that section says that if, After taking all the evidence to in Section 252 and making such examination

of the accused as the Magistrate thinks necessary to make it is found that no case against the accused has been made out which, if unrebutted,

would warrant his conviction. The Magistrate in such case shall discharge the accused. SubSection (2) provides that nothing in this section will be

deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for Jeason to be recorded by him, he considers

the charge to be groundless. As order under section 253 Cr P. C. appears to involve consideration of the merit of the case and the Magistrate is

given the power to discharge an cased person, if after hearing some evidence, it appears that the charge brought against the accused is groundless'

In a case where an order of discharge is based on a consideration of the merits of the matter, it could indeed be right and proper not to allow the

order to disturbed except in a way recognised by the code of Criminal Procedure.

In the present case the order in question was by no stretch of imagination an order on merits of the case The Magistrate had not recorded any

evidence in the case though the complainant had deposited the witness expenses. Even the statement of the complaint was not recorded by him.

While dismissing the complaint he has not stated a word about the merits of the case.

In view of the observations made above the proceedings taken in the subsequent complaint are not barred under the Law. The result is that the

petition under Section 561 Cr. P. C. fails and the inquiring Magistrate is directed to deal with the case as expeditiously as possible. The petitioners

is directed to appear before the Court below on 121084. Let the file pretaining to the petition under Section 561A Cr. P. C., be consigned to

records.