Subeg Singh vs State of Punjab

N.K. Kapoor, J.—This petition is for quashing of complaint dated 17.4.1993 and summoning order dated 11.2.1994 passed by Judicial Magistrate, Mansa.

Smt. Sarabjit Kaur filed a complaint under Sections 406 498A 323 and 506 I.P.C. against petitioners and Jaspal Singh and Gurinder Singh sons of Subeg Singh. The Judicial Magistrate on perusal of the statement of Sarabjit Kaur found prima facie case against Jaspal Singh, Subeg Singh, Surjit Kaur, Rajinder Kaur and Kulvinder Kaur. It was this summoning order which is sought to be quashed on the ground that identical complaint against the present petitioners and other co-accuse was dismissed in default on 6.3.1993 and there being no special circumstances for filing a fresh complaint, same is a clear case of abuse of process of the Court. Even otherwise, the complainant had already filed a civil suit against petitioner Nos. 1 and 2 as well as against Jaspal Singh and Gurinder Singh. The allegations in the said suit are also similar to the one contained in the criminal complaint except that the names of petitioner Nos. 3 and 4, namely, Kulvinder Kaur and Rajinder Kaur do not find place in the suit as defendants. On these broad averments, it was prayed that the present complaint deserves to be quashed.

Pursuant to the notice issued by the Court, reply has been filed by respondent No. 2. By way of preliminary objection, it has been urged that the inherent powers of the Court u/s 482 Cr.P.C. cannot be exercised in the present case as present petition raises disputed questions of fact. It has further been urged that the Judicial Magistrate having prima facie found a case against the petitioner and Jaspal Singh, the same does not call for any interference u/s 482 Cr.P.C. Other averments made in the petition have been controverted. As regards the filing of the second complaint on the same cause of action, it has been averred that the first complaint was got dismissed in default on the assurance of a compromise given to the answering respondent and other members, of her parental family. It was in fact a clever play of the petitioners to get the complaint dismissed. In fact note at the end of the complaint, Annexure P-1, clearly makes mention as to why the first complaint was got dismissed. The Court also did not apply its judicial mind and so such a dismissal does not debar the complainant to file a fresh complaint. As regards the filing of the civil suit, the same too was defended by asserting that the same pertains to enforcement of civil rights of the answering respondent. It was thus prayed that the petition be dismissed.

The first submission of the learned Counsel for the petitioners is that second complaint on same cause of action is not maintainable in law. A bare perusal of second complaint, Annexure P-l, and the first complaint, Annexure P-3, leave no doubt that the second complaint is a verbatim copy of the first complaint with a note which reads as :

"That previous complaint moved by the complainant in this Hon''ble Court was dismissed in default as she could not pursue the same due to assurance of compromise through brotherhood Panchayat, but to no effect uptil now. Hence this fresh complaint."

According to the Counsel except for the above mentioned note wherein it has been mentioned that the first complaint was got dismissed in default on account of assurance of a compromise given to her, there is no reference in this regard in the body of the complaint. It has not been stated as to when such an assurance was given to her and in whose presence. Names of persons constituting such brotherhood also does not find mention in the complaint. The precise date and time when such a body of brotherhood assembled or took such other steps in persuading the petitioners and other accused finds no mention in the complaint. Since these material averments are lacking in the complaint, the Magistrate erred in law in entertaining the same and passing an order for summoning of the petitioners and Jaspal Singh. According to the Counsel, even the Judicial Magistrate has not assigned any reason for entertaining this second complaint. Support was sought from the decision of this Court, in Lekhraj Kukreja and Anr. v. Mrs. Rayman 1991 (3) RCR 217 : II (1989) DMC 75.

The learned Counsel for the respondent, however, tried to justify the filing of the second complaint as well as order summoning petitioners and Jaspal Singh passed by Judicial Magistrate on 11.2.1994. It was urged by the learned Counsel for the respondent that as duly explained in the note appended to the complaint dated 17.4.1993, the earlier complaint was withdrawn on the assurance given by the petitioners and other accused persons. Answering respondent bonafidely believing that the petitioners and the accused intended to resolve the dispute amicably did not put in appearance in the Court on the date fixed and so petition was ordered to be dismissed in default by the Magistrate. In fact there has been no applicability of mind by the Court. Thus, the filing of the second complaint and its entertainment by the Magistrate is perfectly legal and just. In addition thereto, the Counsel urged that the exceptional powers of this Court u/s 482 Cr.P.C. ought to be exercised in the rarest of rare cases and present complaint certainly does not fall within it. Counsel further submitted that it is not a case of the petitioners that complaint as such does not disclose commission of offence. On the other hand as per averments made in the complaint all the petitioners and Jaspal Singh are clearly guilty of offence under Sections 406 and 498A I.P.C. for which they have been summoned. Similarly, there is no merit in the plea of the petitioners'' Counsel that since the matter is pending before the Civil Court, the present criminal proceedings need to be dropped.

I have heard the learned Counsel for the parties and perused the relevant material referred to by the respective Counsel. Broad facts are not in dispute that Jaspal Singh married Sarabjit Kaur on 19.11.1987. They were blessed with a female baby on 23.3.1989. How and in what manner Smt. Sarabjit Kaur had been treated by her husband and the present petition is seriously contested by the respective contesting parties. Similarly, parties stand vary with regard to the entrustment of various articles at the time of marriage and their possession. According to the petitioners neither any demand for dowry was made nor any such articles were ever entrusted to any of the present petitioners. Since the present petition had been filed for quashing of the complaint primarily on the ground that second complaint is not maintainable as per facts of the present case, I refrain from examining in the veracity of averments made in the complaint with regard to the alleged entrustment of various articles to the petitioners and other accused persons or its denial by the present petitioners.

Sarabjit Kaur filed a complaint under Sections 406/498A 323 506 I.P.C. in the Court of Judicial Magistrate I Class, Bathinda on 2.1.1993. This Complaint was dismissed in default on 6.3.1993 (Annexure P-4). The fresh complaint, a verbatim copy of the first complaint, was filed on 17.4.1993 with a note appended thereto that the first complaint was got dismissed as she had been persuaded that a compromise would be effected. Judicial Magistrate while ordering for summoning of the petitioners has not adverted to this aspect of the matter. May be he was not aware to the note appended to the complaint dated 17.4.1993. The Apex Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, had the occasion to examine this precise question as to whether second complaint on same facts is entertainable. It was held that though an order of dismissal u/s 203 Cr.P.C. is no bar to the entertainment of the second complaint but it will be entertained only in exceptional circumstances i.e., 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. That is to say that whenever a Magistrate is satisfied that previous order for dismissal was due to manifest error or resulted in miscarriage of justice, he could entertain a second complaint on the same allegations even when the earlier complaint was dismissed u/s 203 Cr.P.C. Following the decision in Pramatha Nath Talukdar''s case (supra), the Apex Court in Bindeshwari Prasad Singh Vs. Kali Singh, held that "second complaint can lie only on new facts or even on previous facts only if a special case is made out."

Following the above judgments of the Apex Court, Mr. G.S. Chahal, J., held in Lekhraj Kukreja 1991(3) RCR 217 that "a second complaint on the same facts was not maintainable unless special case was made out". Facts in the above mentioned case are almost identical to the present complaint. Thereto on account of non-presence of the complainant, the same was ordered to be dismissed for non-prosecution. On these facts, it was held that a second complaint is not maintainable unless there are special circumstances. In the present complaint except for the note appended to the second complaint, there is no averments in the complaint as to who constitute brotherhood Panchayat and when. There is no averment in the complaint that any such body ever assembled or met the petitioners and other accused persons with a view to amicably settle the dispute between the parties relating to rehabilitation of the complainant or for settlement of various dowry articles alleged to be with the accused. This note in the complaint appears to have been appended so as to ward off the possible action that second complaint unless some special circumstances are mentioned is not maintainable in law. Accordingly, I am of the view that in view of the judicial pronouncements of the Apex Court as well of this Court, the second complaint is not maintainable. Resultantly, I accept the petition and quash the complaint dated 17.4.1993 and the summoning order dated 11.2.1994 passed by Judicial Magistrate, Mansa.