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Rama Nand Vs. Sheri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1934All87; 150Ind.Cas.373
AppellantRama Nand
RespondentSheri
Excerpt:
- - 3. it is well settled that there is no bar to the trial of a second complaint by the same magistrate who had dismissed the first complaint and passed an order of discharge......438, criminal p.c., and arises under the following circumstances:on 16th september 1932, one sheri filed a complaint in the court of a sub-divisional magistrate of meerut against puran mai and batna nand patwaris under section 218, penal code. this complaint was transferred to the court of lt. budh prakash, special magistrate. the special magistrate dismissed the complaint and discharged the accused, about two weeks after the dismissal of the complaint and the discharge order, sheri filed another complaint on the same facts in the court of the sub-divisional magistrate. this complaint was transferred to the court of meharban ali, special magistrate, for trial. rama nand then filed an application in revision in the court of the sessions judge challenging the competency of section meharban.....
Judgment:
ORDER

Iqbal Ahmad, J.

1. This is a reference by the learned Sessions Judge of Meerut under Section 438, Criminal P.C., and arises under the following circumstances:

On 16th September 1932, one Sheri filed a complaint in the Court of a Sub-Divisional Magistrate of Meerut against Puran Mai and Batna Nand patwaris under Section 218, Penal Code. This complaint was transferred to the Court of Lt. Budh Prakash, Special Magistrate. The Special Magistrate dismissed the complaint and discharged the accused, About two weeks after the dismissal of the complaint and the discharge order, Sheri filed another complaint on the same facts in the Court of the Sub-Divisional Magistrate. This complaint was transferred to the Court of Meharban Ali, Special Magistrate, for trial. Rama Nand then filed an application in revision in the Court of the Sessions Judge challenging the competency of Section Meharban Ali to take cognizance of and to try the second complaint filed by Sheri, It was contended on behalf of Rama Nand in the Court of the Sessions Judge that as the previous complaint that was based on the very facts that formed the basis of the second complaint had been dismissed and he was discharged, the second complaint was not entertainable by another Magistrate. In support of this contention reliance was placed on behalf of Rama Nand on the decision of this Court in Nanda v. Emperor, : AIR1927All815 . It was held in that case that when one Magistrate had discharged an accused person, another Magistrate of a different Court cannot entertain a fresh complaint on the same facts for the same offence. This decision, as observed by the learned Judge fully supports the contention advanced on behalf of Ramanand. On the other hand on behalf of the complainant reliance was placed on the decision in Puran v. Emperor : AIR1926All298 , and there is no doubt that there is conflict between the two decisions noted above. In view of this conflict the learned Judge has reported the matter to this Court for orders.

2. There is no provision in the Code of Criminal Procedure attaching finality to an order of discharge analogous to the provisions of S, 403 of the Code which bars the trial of a person for the same offence of which he has been convicted or acquitted so long as the order of conviction or acquittal remains in force. It is clear therefore that an order of discharge cannot be a bar to the trial of the person discharged for the same offence of which he was discharged, but it is also equally clear that it would be highly inconvenient to allow successive trials of complaints based on same allegations by different Magistrates and different Courts, after a previous complaint on the same facts by the same complainant and against the same accused has been dismissed by a Magistrate of competent jurisdiction. A subsequent complaint can be filed either (1) before the same Court presided over by the same Magistrate who had dismissed the former complaint, or (2) before the same Court presided over by the succe3sor-in-offioe of the Magistrate who had dismissed the former complaint, or (3) before a Court other than the Court which had dismissed the former complaint.

3. It is well settled that there is no bar to the trial of a second complaint by the same Magistrate who had dismissed the first complaint and passed an order of discharge. To this effect are the decisions of this Court in Queen-Empress v. Puran (1886) 9 All. 85, Queen-Empress v. Omedan (1895) A.W.N. 86, Emror v. Mehrban Husain (1906) 29 All. 7 and Emperor v. W.C. Keymer A.I.R. 1914 All. 179.

4. In the second class of cases in which the second complaint is filed before the same tribunal, although the incumbent is a different individual, it has been similarly held by this Court in Ram Bharos v. Babaii A.I.R. 1914 All. 79, that the trial of the second complaint is not barred.

5. In the third class of cases where the complaint is filed or transferred for trial to a tribunal other than the one which had dismissed the previous complaint and passed an order of discharge, there is conflict of authority in this Court as to the maintainability of the second complaint. It was held in Queen-Empress v. Adam Khan (1889) 29 All. 106, that where a competent tribunal has dismissed the complaint another tribunal of exactly the same powers cannot reopen the same matter on a complaint made to it. It was observed by the learned Judges in that case that it was utterly contrary to sound principles that one Magistrate of co-ordinate jurisdiction should, in effect and substance deal with, as, if it were an appeal or a matter for revision, a complaint which had already been dismissed by a competent Magistrate of co-ordinate authority. This decision was distinguished in Emperor v. Mehrban Husain (1906) 29 All. 7 and Ram Bharos v. Baban A.I.R. 1914 All. 79. It is to be noted however that the decision in Queen-Empress v. Adam Khan (1889) 29 All. 106 was not dissented from in either of the two cases noted above. Again this decision was followed by a learned Judge of this Court in Nanda v. King-Emperor, : AIR1927All815 .

6. In the case of Puran and another, Daniels, J., observed that the decision in Adam Khan's case (1889) 29 All. 106 was not followed by this Court and that the opposite view has prevailed in later cases. The later cases referred to by the learned Judge are the cases reported in Emperor v. W.C. Keymer A.I.R. 1914 All. 179 and Ram Bharose v. Baban A.I.R. 1914 All. 79. I have examined these cases and I find that the view taken in Queen-Empress v. Adam Khan (1889) 29 All. 106 was not dissented from in the subsequent decisions of this Court.

7. I therefore hold following the decision in Queen-Empress v. Adam Khan (1889) 29 All. 106 that the trial of the second complaint by S. Meharban Ali, Special Magistrate, is barred. I accordingly direct that the complaint in the Court of Section Meharban Ali 'be dismissed. Let the record be returned.


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