Sohan Singh and others vs State of Punjab

G.S. Chahal, J.

By means of this criminal miscellaneous under Section 482 Cr.P.C. Sohan Singh and others, petitioners seek the quashing of the complaint dated 27.7.1989; summoning order dated 29.4.1991 and all the subsequent proceedings, pending in the Court of the learned Additional Chief Judicial Magistrate, Ropar.

On 3.5.1987 report No. 16, Annexure P 2 was lodged with Police Station Chamkaur Sahib with respect to an occurrence dated 27.4.1987. On the basis of this report, the Police took action under Sections 107/151, Cr.P.C. which culminated in the discharge of the petitioners under the orders of DSDM dated 30.12.1987, Annexure P3. On 14.6.1988, the complainants filed complaint Annexure P4 against the petitioners which was dismissed on 24.1.1989 for default of appearance of the complainants. On the same facts, the complainants filed a second complaint which was also dismissed for default on 28.3.1989. A third complaint Annexure P.5 was filed. It was also dismissed vide order dated 5.7.1989. The impugned complaint Annexure P.1 was again filed without giving any explanation for delay or giving any special reasons for filing this complaint after dismissal in default of the earlier three complaints. The leaned Additional Chief Judicial Magistrate vide order dated 29.4.1991, Annexure P.6 summoned the petitioners. The complaint was based on false facts and the same was not competent in view of the fact that previous complaints on the same allegations had been dismissed indefault. The facts alleged in the complaints Annexures P.1, P.4 and P.5 are the same. Paragraph 11 of the complaint Annexure P.1, reads as under :

"That complainants had filed complaint against the accused in this Hon''ble Court which have been dismissed in default one on 21.1.1989 and the other on 25.7.1989. Hence, this complaint is being filed, afresh."

The learned counsel for the petitioner has argued that once a complaint is dismissed for default a second complaint is not competent unless it is proceeded on additional facts and this view finds support from the two judgments of the Supreme Court reported as Bindeshwari Prasad Singh v. Kali Singh, 1977(1) SCR 125 and Maj Gen. A.S. Gauraya and another v. S.N. Thakur and another, 1988(1) R.C.R.(Criminal) 3 : 1987(1) CLR 408. The ratio of these two judgments is to the effect that the Magistrate has no inherent power under the Criminal Procedure Code to recall the order and once a complaint is dismissed in default, he cannot recall that order and proceed with the same. The complainants in the present case have not made out a case for the Magistrate to proceed on the same facts again regarding which their previous complaints had been dismissed. I hereby allow the criminal miscellaneous and quash the impugned complaint, as well as the summoning order and the subsequent proceedings.