Ramakanta Sahoo and Others - Petitioners @HASH State of Orissa and another - Opposite Parties

K.R. Mohapatra, J. - The petitioners in this petition under Section 482 Cr.P.C. assail the order dated 24.12.2012 (Annexure-2) passed by the

learned J.M.F.C., Jajpur Road in I.C.C. No. 209 of 2012 taking cognizance of the offence under Sections 294, 323, 341, 342, 506 and 34

I.P.C.

Though notice on the opposite party no.2 was made sufficient, none appears for the opposite party no. 2, when the matter was called.

It is submitted by Mr. Mishra, learned counsel for the petitioners that the opposite party no.2 had earlier filed I.C.C. No. 35 of 2010 before the

learned J.M.F.C., Jajpur Road. After appearance of the petitioners in the aforesaid complaint case, the matter was posted for hearing. On

14.05.2012, when the matter was posted for hearing, though the petitioners appeared, neither opposite party no. 2 nor his counsel took any step.

Hence, the complaint was dismissed for default for nonappearance of the complainant-opposite party No.2 and the petitioners were acquitted.

Subsequently, the petitioners filed another complaint case (I.C.C. No. 209 of 2012) on the same set of allegations and stating that due to their

illness, they could not appear on the date of hearing for which I.C.C. No. 35 of 2010 was dismissed for default on 14.5.2012. It is the submission

of Mr. Mishra that the second complaint (I.C.C. No. 209 of 2012) for the same offence is not maintainable and hence, the proceeding is liable to

be quashed.

When the matter came up on 8.8.2016, this Court after hearing learned counsel for the parties passed an order directing the learned counsel for

the petitioners to check up whether after dismissal of the complaint under Section 256 (1) Cr.P.C. for non-appearance of the complainant and

acquittal of the accused, a second complaint for the selfsame occurrence would lie or not.

In view of the above, the only question remains to be decided in this case is whether the second complaint on the self-same allegation is

maintainable, when earlier one was dismissed under Section 256 (1) of the Cr.P.C.

In support of his case, Mr. Mishra, learned counsel for the petitioners relied upon the decision in the case of Om Gayatri and Co. and others

v. State of Maharashtra and another, 2006 CRI.L.J. 601, wherein it has been held as follows:

����.In the present case, the Magistrate found that the complainant was avoiding to lead evidence, therefore, relying on the ruling of

this Court reported in 1998 Mah LJ 576 : (1998 Cri LJ 3754) the Magistrate proceeded to pass an order acquitting the accused. Once this order

has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave

of the Court as required by Section 378 (4) of Cr.P.C......

...... There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under Section 256(1) of the

Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order

of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of

the learned Magistrate by special leave of the Court under section 378 (5) of the Criminal Procedure Code, 1973.

Mr. Pani, learned Addl. Standing Counsel for the State, however, supported the impugned order of taking cognizance and submitted that earlier

complaint having not been considered on merit and the petitioners having not faced the trial, a second complaint on the same set of allegations is

maintainable.

Having heard Mr. Mishra, learned counsel for the petitioners and the learned Addl. Standing Counsel for the State (opposite party no. 1) and

on perusal of the case record, it is abundantly clear that the learned J.M.F.C. has exercised his power conferred on him under Section 256 (1) of

the Cr.P.C. and dismissed the complaint for default of the complainant and acquitted the accused person as well. Section 256 of the Cr.P.C.

provides the procedure to be adopted by the Magistrate for non-appearance or death of the complainant. Sub-section (1) provides that if the

summons has been issued on complainant, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which

the hearing of the case may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he

thinks it proper to adjourn the hearing of the case to some other day.

Three courses are open for the Magistrate in the event of non-appearance or death of the complainant on the date of hearing, such as:-

(a) shall acquit the accused; or

(b) adjourn the hearing of the case; or

(c) when the complainant is represented by a pleader or officer conducting prosecution, dispense with personal appearance of the complainant.

In the case at hand, the Magistrate in terms of Section 256 (1) of the Cr.P.C. acquitted the accused persons (petitioners herein) for non-

appearance of the complainant by his order dated 14.5 .2012. The said order having not been challenged/modified or varied at any subsequent

stage has reached its finality. Again on the same set of allegations, the complainant-opposite party no. 2 filed another complaint in I.C.C. No. 209

of 2012 stating therein that on 14.5.2012, the complainant was suddenly fell ill and could not attend the court.

Thus, the question arises whether an acquittal under Section 256 (1) of the Cr.P.C. would be covered under Section 300 (1) of the Cr.P.C. which

provides that a person once has been tried by a competent Court for an offence and convicted or acquitted of such offence, shall not be, while

such conviction or acquittal remains in force, liable to be tried again.

An exception may be taken to the words ''has once been tried'' appearing in Section 300(1) Cr.P.C. When an order under Section 256 (1) is

passed, an obvious question may arise that the accused has not faced the trial, so the order of acquittal may not be covered under Section 300 (1)

of the Cr.P.C. The said query has been answered in a decision of this Court in the case of Madan Mohan Tripathy v. Rama Chandra

Behera, reported in 1988 (II) OLR 362. This Court placing reliance on several case laws including the case of State of Karnataka v. K.H.

Annegowda and another, reported in (1977) 1 SCC 417, held that ''tried'' under Section 300 (1) Cr.P.C. would include all steps taken after

taking of cognizance which includes the date of appearance of the accused after issuance of summons. Thus, this Court in the case of Madan

Mohan Tripathy (supra) held that an acquittal under Section 256 (1) Cr.P.C. is squarely covered under the provisions of Section 300 (1) Cr.P.C.

In the case of Jatinder Singh and others v. Ranjit Kaur, reported in AIR 2001 SC 784, it has been held 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 trial, 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 under Section 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.

xxx xxx xxx

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 complainant moving the

Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 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 Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962

SC 876 : (1962)(I) Cri LJ 770). A majority of Judges of the three Judge Bench held thus (Para 48):

An order of dismissal under Section 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.

In the aforesaid case law, the Hon''ble Apex Court was examining the maintainability of a second complaint for the same offence after dismissal of

earlier one under Section 203 Cr.P.C. and came to a conclusion that a second complaint in such a circumstance is maintainable. But,

considerations for dismissal of a complaint under Section 203 Cr.P.C. and that under Section 256(1) Cr.P.C. are completely different. The power

under Section 256(1) of the Code can only be exercised at the stage of the trial. Thus, an acquittal under Section 256(1) of Cr.P.C. shall be

covered under the principles of Section 300(I) of Cr.P.C.

At this stage, it is profitable to refer para-48 of the case of Pramatha Nath Talukdar quoted herein above. This view has been reaffirmed in the

case of Mahesh Chand v. B. Janardhan Reddy and another, reported in (2003) 1 SCC 734, which subscribes that a second complaint on

the same facts could be entertained only in exceptional circumstances, namely;

(i) Where the previous order was passed on an incomplete record; or

(ii) On a misunderstanding of the nature of complaint; or

(iii) It was manifestly absurd or unjust; or

(iv) Where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.

The case at hand does not fall under any of the category stated above. Hence, the ratio decided in Jatinder Singh''s case (supra) is not applicable

here.

The only alternative available before the complainant was to prefer an appeal under Section 378 Cr.P.C. following due procedure of law

against an order of acquittal under Section 256 (1) Cr.P.C. The said view also gets support from the decision in the case of Om Gayatri (supra),

relied upon by Mr. Mishra. In that view of the matter, the second complaint on the same allegation in I.C.C. No. 209 of 2012 pending before the

learned J.M.F.C., Jajpur Road is not maintainable.

Accordingly, the CRLMC is allowed. The proceeding in I.C.C. No. 209 of 2012 pending before the learned J.M.F.C., Jajpur Road is

quashed.