Sekaran Chetti and others vs Mari

David Annoussamy, J.—This is a revision petition against the conviction and sentence, preferred by all the four accused.

The first accused is the manager and the fourth accused is the Assistant Manager of Manjurae Plantations and accused 2 and 3 are the

conductors in the same plantations. The respondent complainant in this case is a workman. He filed a complaint to the police on 1-12-1978,

stating that on the previous day viz., 30-11-1978, all the four accused confined him in a room, beat him up and also extorted his signature in a

blank paper. He was sent by the police to the Gudalur hospital where be stayed for six days. However, the final report of the Police was to the

effect that no offence appeared to have been committed by the accused. Thereupon, the complainant filed a private complaint before the Sub

Divisional Judicial Magistrate, Gudalur, on 28-2-1979. The matter was adjourned to 14-3-197''y for recording the sworn statement of the

complainant. The complainant filed another complaint on 3-5-1979 stating that he could not appear on 14.3.1979 and that he learnt that the

complaint was dismissed. The second complaint was taken on file by the Magistrate. The sworn statement of the complainant was recorded and

summons were issued to the accused. Thereupon, trial was conduced as per procedure prescribed by law, on charges against the accused for

offences under Ss.147, 323, 342 and 506, Part II, I.P.C. The trial court found all the four accused guilty under Ss.147 and 342, and accused 1

guilty under S.806, Part If, and accused 2 to 4 under S.506, Part II, read with S.149. The accused were sentenced for each of the offences to

fines ranging from Rs. 50 to Rs. 100.

Aggrieved by the Judgment, the accused preferred an appeal before the learned Additional Sessions Judge, Coimbatore. That Court by

judgment, dated 22.6.1983, confirmed the convictions and sentences. As against the said judgment the present revision petition is filed.

The main and the foremost ground urged before me by the Learned Counsel for the revision petitioner is that the whole proceeding is illegal in as

much as the Magistrate entertained the second complaint without the complainant justifying the exceptional circumstances for the second complaint

being taken on file. The Learned Counsel placed before me in this connection, two decisions, viz., (1) the decision of the Bombay High Court in

Hansabai Sayaji Payagude Vs. Ananda Ganuji Payagude, , and (2) the decision of the Supreme Court in Pramathanath v. Saroj Ranjan 1962 1

Crl. L.J. 770. In these decisions, it has been held that an order of dismissal under S.203, Crl. P.C. it no bar to the entertainment of a second

complaint, on the same facts but it will be entertained only in exceptional circumstances, for example, 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 brought to light. These decisions will

have no application to the facts of this case, because the dismissal of a complaint under S.203, Crl. P.C. takes place after considering the

statements on oath of the complainant and of the witnesses and eventually the result of the enquiry or investigation. In cases of a complaint by a

public servant, there will not be statements on oath, but only the statements on the complaint. That is why, under S. 203 the phrase ''if any� is

included within brackets. When the Magistrate decides at hat stage, he has also to briefly record the eason for dismissal of the complaint and such

an order can be challenged before the Higher court. For taking a decision under S. 2)3, the Magistrate has materials before him and comes to an

opinion that there is no sufficient ground for proceeding. In the pre-seat case, the complainant has filed a new complaint stating that he heard that

his previous complaint was dismissed, because he wis absent on the date on which the case was adjourned for recording his sworn statement. This

is also what the trial court recorded in its judgment. Therefore, the dismissal of the complaint by the trial court on the mere absence of the

complainant prior to recording any sworn statement, cannot be said to be a dismissal under S. 203, Crl. P.C, and therefore, for entertainment of a

second complaint, no exceptional circumstances have to be proved. The Magistrate has only to be satisfied that the complainant remained absent

.for valid reasons.

Learned Counsel for the revision petitioner placed before me the decision of the Calcutta High Court in Ram Prosad Maitra Vs. Emperor, . In

that case, the complainant was not present in court on any of the dates on which the case came before the Magistrate. It was held that it was the

business of the complainant to be present in court if he desired to have his statement taken on oath, and that in a case like that, the complainant

cannot be heard afterwards to say that the matter should be sent back to the Magistrate for further inquiry. It may be seen that in the said case the

complainant went before the higher court aggrieved by the dismissal of the complaint on account of his absence and that the higher court said that

he could not complain against an order of dismissal on account of his absence. But, in this case, the complainant has not come before the Sessions

Court, aggrieved by the dismissal of the first complaint. He preferred a new complaint before the same Magistrate who has chosen to entertain it,

being satisfied of the reasons disclosed in the complaint, and to take it on file. Therefore, the stand taken in the decision of the Calcutta High Court

is of no avail to the revision petitioner in this case.

The above ground has therefore no merit.

The second ground urged by the Learned Counsel for the revision petitioners before me is that the occurrence took place on 30th November,

1978, and the complaint on which the trial was held was filed only on 3rd May, 1979 after a delay of more than five months, for which the

complainant was not able to account. In the first place, because there is a delay of five months the prosecution will not be vitiated. As long as the

matter is not hit by limitation it is open to the complainant to file his complaint and the court has to take cognizance of the same. The minimum

period of limitation is six months under S.488, Crl. P.C., and this case is not hit by limitation. The effect of delay would be only that if it is not

properly explained, the court would look at the evidence of the prosecution with circumspection. Therefore, it would be hard to accept that the

whole proceedings should be held to be vitiated on account of the delay in filing the complaint. Secondly, in this case, it is seen that on the very

next day the complainant has preferred a complaint before the Police and that he has filed a private complaint on 28th February, 1979 and that he

could not be present on the adjourned date, viz., 14th March, 1979, for the reasons alleged by him. Therefore, it cannot be said that the

complainant had come before the criminal administration machinery only after a delay of five months.

Learned Counsel for the revision petitioner endeavoured also to show that the findings of the trial court to the effect that the accused had been

guilty of offences under Ss. 147, 342 and 506, were not just and proper. It is seen that as in this case, two courts have given a concurrent finding,

after going into the totality of the evidence. The Learned Counsel for the revision petitioner has not pointed out any circumstance which would

show that the finding is perverse, arbitrary or capricious. I do not, therefore, find any reason to interfere with the findings of fact rendered by the

trial court and confirmed by the appellate court.

In the result the revision petition fails and is dismissed.