(1) In this case, the order of the Sessions Judge, Guntur directing further enquiry against all the accused is sought to be revised. The petitioners are accused 1, 2, 7 to 9 in C. C. No. 201 of 1954 on the file of the Additional First Class Magistrate, Narasaraopet. A complaint was filed against them on 11-2-1954, against these petitioners and four others for offences under ss. 148, 326, 307 and 504, Penal Code, with the following allegations:
(2) On 8-2-1954, at about 7-30 P.M. a boy aged about ten years belonging to the family of the accused was answering calls of nature before the house of the complainant. The complainant advised the boy not to commit nuisance in front of the house and that he could go a little farther from the house for the purpose. Immediately all the accused who were inimically disposed to the complainant
'came out of the house of the 5th accused with axes and sticks; formed into an unlawful assembly; abused the complainant in an indecent language and came against him to bear him'.
A-2 and A-3 were having axes in their hands and the rest armed with sticks. The 3rd accused raised the axe in his hand to strike the complainant, but the latter escaped and the blow fell upon A-1 a very old woman who was pouncing upon the complainant. A-1 then fell down. Then the second accused got enraged and attempted to kill him by striking on his head with the axe.
(3) A complaint was sent by post and it reached the court of the Additional First Class Magistrate on 11-2-1954. A sworn statement of the complainant was taken on 19-2-1954. Therein he stated that, when he asked the grandson of A-5 who was answering calls of nature not to commit nuisance there, but to go a little farther away, A-1 to A-6 standing on front of their hoiuse indecently abused him. Then A-1 and A-2 went to him.
A-2 attempted to beat him with an axe in his hand, but he escaped the blow and it fell upon A-1. Meanwhile A-3 came and beat him on his head with an axe and he fell down. A-4 beat him on his shoulders with a stick. A-5 and A-6 best him on his loins. Then A-7 to A-9 came on the scene and the complainant could not say on which part of the body A-7 to A-9 beat him.
(4) The case was taken on file by the Additional First Class Magistrate, Narasaraopet, against A-3, A-4, A-5 and A-6 for offences under Ss. 323 and 324, Penal Code. It was transferred to the Taluk Magistrate. Subsequently it was sent back to the same Magistrate who originally took cognisance of the case. Thecase was being adjourned from timeto time and it was finally posted to 16-7-1954. On that date, as the complaint was absent, the accused were discharged under S. 259, Criminal P. C.
A fresh complaint was filed on the next day with the same allegation as in the first giving reason for his absence on the 16th. A statement of the complainant was again recorded on 19-7-1954. The complainant then stated that when he asked the grandson of the 5th accused go to a little farther from his house to ease himself, A-1 to A-9 came out of the house of A-5, A-2 and A-3 armed with axes and the rest with sticks, that A-3 attempted to cut him with an axe on his head and when he escaped the blow fell on A-1, the mother of A-5, when A-2 who was by his side beat him with an axe in his hand. Therest of the accused beat him on various parts of the body.
(5) The Additional First Class Magistrate thought tht the absence of the complaint was satisfactorily explained and there were sufficient grounds for entertaining the fresh complaint. But instead of saying, that the fresh complaint was taken on file he ordered the case to be 'restored to file and re-heard'. But what he seems to have meant was that the fresh complaint could be entertained only against A-3, A-4 and A-5 and A-6 against whom only the case was originally taken on file for offences is evidenced from what is contained in the docket.
'Taken on file under S. 324, Indian Penal Code, against A-3 and under S. 323, Indian Penal Code 1954, for apprehension of the accused. Issue summons to accused. Complainant informed.
(6) The matter was aken in revision by the complainant before the Sessions Judge challenging the validity of the order in so far as it did not direct processes to be issued against the other accused mentioned in the complaint. The learned Sessions Judge allowed the revision petition remarking tht the procedure adopted by the trial court was grossly irregular as there was no question of restoring a criminal complaint to file and re-hearing it and that the trial court ought to have treated it as a fresh complaint. He sent back the matter to the trial court with a direction for holding further enquiry against all the accused. This revision case is against the said order of the Sessions Judge.
(7) I have already pointed out that the Magistrate did treat the second complaint as a fresh complaint as appears from the endorsement referred in above although the language used by him namely 'restored to file' is not quite happy.
(8) In support of this revision case, Mr. Venkata Subba Rao, argued that the Magistrate was justified in treating the fresh complaint as an application for restoration of the original complaint and that the Magistrate had jurisdiction to restore the complaint to file even after an order under S. 259, Criminal P. C., was passed. In support of the proposition that a Magistrate has jurisdiction to restore a complaint, he cited a number of rulings. 'The question is not whether a court has jurisdiction to restore a complaint dismissed, but whether a Magistrate could pass an order restoring the dismissed complaint when a fresh complaint is filed. Therefore, all the rulings cited by him are irrelevant and need not be considered.
(9) It was next urged by the counsel for the petitioners that a fresh complaint could not be entertained on the same facts, if the order under S. 259, Criminal P. C. passed by the Magistrate was not revised. There is not much substance in this argument either. A fresh complaint is not barred as the principle underlying S. 403, Criminal P. C., does not apply to a case like that. This matter has been considered in a number of cases where it was stated that a second complaint is competent.
In -- 'Chinnathambi Mudali v. Salla Gurusamy Chetty', 28 Mad 310 (A), a Bench of the Madra High Court held that when the accused were discharged under S. 259, Criminal P. C., a fresh complaint could be filed and the Magistrate could re-hear the same. In -- 'Ponnuswamy Goudan v. Emperor, AIR 1932 Mad 369 (FB) (B) a Full Bench of the Madras High Court decided that Magistrate had jurisdiction to entertain a second complaint even when the first complaint was dismissed and the order of dismissal was not set aside.
There can, therefore, be no doubt that a second complaint can be entertained despite the fact that the order dismissing the first complaint or the order discharging the accused under S. 259, Criminal P. C., has not been set aside. That apart, no exception has been taken by the accused to the fresh complaint being taken on file.
(10) The next question and a more substantial one is whether that part of the order of the Sessions Judge which directed a further enquiry against all the accused is a correct one. Although it does not appear form the record place before me that an express order was passed dismissing the complaint against accused 1, 2, 7 to 9, it is clear that it was taken on file only against accused 3 to 6. It looks tome this amounts to a dismissasl of thecomplaint against the other accused. That this is the effect of such an order also appears from a ruling of the Allahabad High Court in -- 'Sheoraj v. Emperor', AIR 1948 All 46 (C).
If so, it is open to the Magistrate to refuse to take on file a fresh complaint against those persons against whom a complaint was dismissed originally, presumambly on the ground that the complaint could not be entertained against him. If really a second complaint is entertained against the very persons this amounts ot an abuse of process of court in the words of Kuppuswamy Ayyar J., in -- 'Kumariah Naicker v. Chinna Naicker', AIR 1946 Mad 167 (D).
It could not be said that the Magistrate acted improperly it confining the second complaint only to persons against whom the case is proceeding up to the state when the accused were discharged under S. 259, Criminal P. C. Surely, the complainant could not be in a better position by absenting himself and following the accused to be discharged under S. 259, Criminal P. C., and trying to re-open the matter.
(11) In the reuslt, the order of the Sessions Judge in so far as it directs a further inquiry against all the accused is set aside. To that extent, the Criminal Revision case is allowed.
(12) Order accordingly.