Ramji Lal vs Ram Chander, Ex-Sarpanch

V.S. Aggarwal, J.

The short question agitated which seeks an answer is as to if a criminal complaint is maintainable when the earlier complaint has been dismissed for nonprosecution before the Magistrate having summoned the accused or not ?

The relevant facts can well be delineated. Respondent Ram Chander had filed a complaint against the petitioner on 25.8.1984 with respect to an offence punishable under Sections 499/500 IPC in the Court of Judicial Magistrate Ist Class, Bhiwani. The learned Judicial Magistrate had partly recorded the evidence but on 19.9.1986 when none appeared for the respondent, the following order was passed :

"Case called many time since morning. It is 3.50 PM. None appeared on behalf of the complainant. The complaint of the complainant is dismissed for want of nonprosecution. Accused stands discharged. The file be consigned to records."

On 22.10.1986 the respondent preferred a similar complaint and mentioned that the earlier complaint had been dismissed in default because the respondent had fallen ill and could not reach the court in time. The learned Judicial Magistrate recorded the preliminary evidence and summoned the petitioner with respect to the offence punishable under Section 500 of the Indian Penal Code. An application was filed by the petitioner for recalling the order. It was dismissed by the learned Judicial Magistrate on 22.8.1992. Aggrieved by the same, the present petition has been filed for quashing the order summoning the petitioner as an accused despite the earlier complaint having been dismissed in default.

Taking advantage of these facts, the above said argument is being pressed that once the earlier complaint had been dismissed in default, the second complaint was not maintainable.

Chapter XV of the Code of Criminal Procedure prescribes the procedure when complaints are made to Magistrates. A Magistrate can take cognizance of an offence when a complaint is presented and has to examine the complainant on oath and the witnesses present, if any. Section 201 of the Code prescribes the procedure when Magistrate is not competent to take cognizance of the case while under Section 202 of the Code, the process can be postponed and the Magistrate can either enquire into the case himself or direct an investigation to be made by the police officer. Under Section 203 of the Code of Criminal Procedure, if considering the statements on oath of the complainant and the witnesses and as a result of the enquiry and the investigation, the Magistrate is of the opinion that there are no sufficient. grounds for proceeding, he shall dismiss the complaint. In this process there is no specific bar prescribed under the Code for filing of the fresh complaint.

This question had been considered more often than once and also by the Supreme Court in the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 and the Court held :

"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 absured, 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 complaint upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into."

It is obvious from the aforesaid that the said observations were to come into play where earlier complaint is dismissed under Section 203 of the Code of Criminal Procedure. As already pointed above, Section 203 of the Code contemplates dismissal of the complaint after considering the evidence on the record. It is in this background that one has to appreciate that fresh complaint could be entertained where there is manifest error or manifest miscarriage of justice in the previous order. In the present case in hand, the earlier complaint had been dismissed in default and it cannot be termed to be a dismissal under Section 203 of the Code of Criminal Procedure.

For the same reason reliance by the petitioner on the decision of the Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 will be of no avail and help to the petitioner.

Attention was drawn towards the decision of this Court in the case of Raminder Singh and other v. Darshan Singh, 1991(3) RCR 447. To appreciate the reasoning of this court in the above cited case, a brief reference to the facts would be advantageous. In paragraph 5 the learned Single Judge of this Court noted that the previously instituted complaint had been dismissed but there were no further facts stated as to how a new complaint was being instituted. It is not clear if the earlier complaint had been dismissed under Section 203 of the Code of Criminal Procedure or in default without considering the evidence on the record. It also recites that originally the complaint was sent to the police for report and when it came up for further proceedings, it was dismissed in default. It is patent from aforesaid that decision was confined to the peculiar facts of said case and it was not held that a second complaint in no event would be maintainable. Similarly in the case of Vinod Kumar and others v. Veena Kumari, 1993(1) All India Criminal Law Reporter 570 the earlier complaint had been dismissed in default but in the subsequent complaint there was no reference to the complaint earlier filed. It was concluded that fresh complaint could be filed on new facts only. Obviously herein also there was suppression of facts and no reason was given as to why the petitioner did not appear in court at that time.

Reliance further was being placed on the decision of this court in the case of Sham Lal v. State of Punjab, 1996(3) Recent CR 193. In the cited case the reference was made to Section 256 of the Code of Criminal Procedure. It is clear from the perusal of the facts that summoning order was issued by the Magistrate and thereafter the complainant did not appear. It was held that this amounted to acquittal of the accused and, therefore, the second complaint was not maintainable. This is not the question in controversy before this Court and the said decision, thus, is totally distinguishable. Reference to the same was invalid.

Reference to some of the decisions from other High Courts would also be in the fitness of thing. In the case of Kishorilal and others v. Mst. Santosh, 1987 Crl, L.J. 140 the Rajasthan High Court took the view that there is no absolute bar for entertaining a second complaint if there is material before the court in the second complaint or the evidence adduced is different. Same view prevailed with the Gauhati High Court in the case of Azizur Rahman v. Harun Rashid and others, 1989 Crl. L.J. 1096.

In fact the view of Punjab and Haryana High Court is consistent that when a complaint is dismissed for nonappearance, a fresh complaint on the same facts would be maintainable particularly when there is misunderstanding about the next date of hearing or other cogent reasons. In the case of Meharaban Singh v. State of Punjab and another, 1992(1) All India Criminal Law Reporter 137 the complainant could not appear on the date fixed because there was a misunderstanding about recording of the date. A second complaint was filed because his first complaint had been dismissed in default. In face of the misunderstanding about the next date of hearing, it was held that the second complaint was not maintainable. Same view prevailed with this Court in the case of Chanan Ram @ Chanan Dass and another v. Bool Chand, 1996(4) AIJ 67 and in paragraph 6 it was held :

"Mr. Sharma has then urged that vide order dated 16th November, 1987 the Judicial Magistrate Ist Class, Ambala City had dismissed the complaint in default for nonprosecution and which led to the complainant to file a second complaint and on the same facts the second complaint was not maintainable. To my mind this argument has no merit. The first complaint was dismissed in default and as such it cannot be said that a second complaint on the same facts was precluded as there was no decision on merits on the first complaint."

It is obvious from the aforesaid that if a complaint had been dismissed on consideration of the evidence on record, a second complaint would only be maintainable if there is manifest error and unjust or new facts are brought to the notice of the court. If the court finds that there is an abuse of the process of the court, the court can also refuse to entertain the subsequent complaint. In the present case in hand the position is different. The respondent had preferred a complaint. It was dismissed in default. The respondent has given the reason that he had fallen sick. In the second complaint, the fact of the earlier complaint having been filed was not suppressed. In this process the learned Judicial Magistrate was made aware of facts pertaining to dismissal of the earlier complaint and the reasons thereto. When the subsequent complaint was entertained and notice issued, it is to be presumed that the learned trial court was aware and was satisfied about the said reasons. It cannot be termed that there was any abuse of the process of the court. The earlier complaint had not been dismissed on consideration of the evidence. There was no bar thus in entertaining the second complaint.

No other argument was raised.

For these reasons, the petition being without merit must fail and is dismissed.