Sivagurunathan and Others vs Muthulakshmi

Pratap Singh, J.—The accused in C.C. No. 283/89 on the file of the Judicial Magistrate No. II, Kovilpatti have filed this petition under

S.482, Cr.P.C. to call for the records in the above case and quash the same.

Short facts are: The respondent has filed a private complaint against the petitioners for offences under Ss. 494 and 495 read with 109, I.P.C.

alleging that the complainant and the first accused got married on 2.2.1977 according to Hindu customs and while the marriage was subsisting, the

first accused had married the second accused with the active connivance of accused 3 and 4. The complaint was taken on file as C.C. No. 234/88

by the then Sub Divisional Judicial Magistrate, Kovilpatti. After the courts of Judicial Magistrate began functioning, this case was transferred to the

file of Judicial Magistrate No. 1, Kovilpatti. Again it was transferred to the file of Judicial Magistrate No. II Kovilpatti and re-numbered as C.C.

No. 165/89. Though the complainant had taken steps for issuance of notices to the accused, the accused did not appear and fresh notice was

ordered and since steps were not taken, on 8.3.89 the complainant was absent and the complaint was dismissed invoking the provisions under

S.204 (4), Cr.P.C, Later, the respondent had filed the second complaint on 27.3.1980 with the same allegations against the accused adding one

more para in the second complaint, namely, para 7, wherein she has given the reason for her absence on 8.3.89. In the second complaint, it para

8, she had prayed that this second complaint may be taken on file and summons issued to the accused. After the examination of the complainant,

this second complaint was taken on file in C.C. No. 282/89. For quashing the same, the accused have come forward with this petition.

Mr. M. Karpagavinayagam, learned counsel appearing for the petitioner would submit:

(i) a second complaint can be entertained only under special circumstances or if the fresh grounds are made out and in this case neither special

circumstances nor fresh grounds are available and hence it is liable to be quashed.

(ii) there was delay in filing of the first complaint and the second complaint and on that score, the complaint is liable to be quashed.

(iii) In the sworn statement given by the complainant, she had only deposed that she came to now the second marriage between accused 1 and 2

but there is no evidence to show the marriage between accused 1 and 2 and in the circumstances, the complaint is liable to be quashed.

Per contra, Mr. R. Thirugnanam, learned counsel for the respondent would submit that the first complaint was dismissed for the reason that

steps were not taken for issue of summons to the accused by virtue of Sec. 204(4) Cr.P.C. As such the conditions for filing of the second

complaint for dismissal of a complaint under Sec. 203 Cr.P.C. are not applicable to this case. He would also submit that the question of delay can

be considered only at the time of trial and on this ground the complaint cannot be quashed. He would further submit the necessary allegations are

made in the complaint to make out the offences alleged in the complaint and while so, the complaint cannot be quashed at the threshold.

I have carefully considered the submissions made by the rival counsel. I shall consider the submissions in seriatim. I shall first take up the point as

to whether the dismissal was under S.203, Cr.P.C. or under S.204(4), Cr.P.C. For that the order of the learned Magistrate in C.C. No. 165/89 is

to be looked into. In it the learned Magistrate has stated as follows:

Hence under these circumstances, the complaint is dismissed invoicing the provisions laid u/s 204(4) of Cr.P.C.

Though the complainant was absent on 8.3.89, the fact remains that she had not taken steps for issue of summons to the accused and the learned

Magistrate had dismissed the case only on the score that steps were not taken under S.204(4), Cr.P.C. It would also be relevant to extract

S.204(4), Cr.P.C. which reads as follows:

when by any law for the times being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if

such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

I shall now pass on to the authorities relied upon by the learned counsel for the petitioner. In Maj. Genl. A.S. Gauraya and Another Vs. S.N.

Thakur and Another, the Apex Court in para 9 has held as follows:

A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Paramath Nath Taluqdar v. Saroj

Ranjan Sarkar, 1962 (2) SCR Supp. 297:

Then in para 11, the learned judges have held as follows:

It was suggested by Mr. D. Goburdhan that application given by him for recalling the order of dismissal of the complaint would amount to a fresh

complaint. We care, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second

complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.

It was a case where a complaint was dismissed for the absence of the complainant and for non-prosecution.

In Bindeshwari Prasad Singh Vs. Kali Singh, the Supreme Court in para 4 of the judgment, while reiterating the same view held as follows:

It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a

fresh complaint We are, however, unable to agree with the contention because there was no fresh complaint and it is now well settled that second

complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.

In S. Louis Raj v. Roslyn L. Raj (1981 L.W.(Crl.) 47) Sathar Sayeed, J. had held that a second complaint would lie in the above

circumstances. In M. Mumgan v. Ranjini Murugan (1990 L.W.(Crl.) 409) Arunachalam, J. had considered all the rulings in this regard and held as

follows:

It is in this background, the observations of the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar [(1962) 2 S.C.R.(Supp.) 297]

will become relevant The Apex Court has held that an order of dismissal under S.203, Cr.P.C. is no bar to the entertainment of a second

complaint on the same facts, but it would be entertained only in exceptional circumstances narrated by it. Those circumstances are:(l) manifest

error; (2) manifest miscarriage of justice; and (3) New facts which the complainant had no knowledge or could not with reasonable diligence, be

brought on record in the previous proceedings

In this case earlier complaint was dismissed under S.203, O.P.C. From the above rulings, the following principle emerges. In a case where the first

complaint is dismissed for non-appearance of the complaint under S.203, Cr.P.C. a second complaint is maintainable, but only under certain

circumstances, namely: (1) there must be special circumstances; (2) fresh grounds which were not available at the time of first complaint which

came to the notice of the complainant subsequently are set out; (3) manifest error; and (4) manifest miscarriage of justice.

Now, I shall consider whether on the facts of the case, any one of these grounds are made out. The reason as to why the complainant did not

pursue the first complaint and did not take steps for issuance of summons to the accused are set out in para 7 of the second complaint. In it she has

stated that she had taken steps for issuance of summons to the accused by filing process four times and since the case was to be transferred from

Judicial Magistrate Court No. I to the Court of Judicial Magistrate, No. II the court did not order fresh steps and in the meantime, the case was

transferred to Judicial Magistrate Court No. II and she was not aware of the exact date of hearing and also she was not filing process. Only on

13.3.1989, she learnt that on 8.3.1989 the case has been dismissed due to non-appearance of the complainant. She has also stated that non-

appearance of the complainant on 8.3.1989 was neither wilful nor wanton. The circumstances in which she came to be absent cannot be ignored.

If these circumstances are not accepted, if not clearly lead to manifest miscarriage of justice. So I am clear that the case falls within the category

number four of the above principle. On four occasions the complainant had been paying necessary charges for issuance of summons to the

accused. Thereafter, since the case being transferred, no such order was made. She was not aware of the transfer of the case to some other court

and the date on which it was posted. When she claims such reasons, the second complaint cannot be dismissed. I am clear that no better

circumstance could be required for entertaining a second complaint than the circumstances stated above. Hence I am unable to accept the first

ground urged by Mr. M. Karpagavinayagam, earned counsel for the petitioner.

Regarding the second contention that there was delay in filing the first complaint and the second complaint, I am of the view, simply on the

ground of delay a complaint cannot quashed at the, threshold. Regarding the third contention, since necessary allegations are found in the

complaint, the complaint cannot be thrown at the threshold.

11 Since none of the submissions urged by the learned counsel for the petitioner finds acceptance with me, the inevitable result is that the petition

has to be dismissed. Accordingly the petition shall stand dismissed.