R.K. Das, J.
1. This Reference made by the Sessions Judge, Bolangir-Kalahandi, arises under the following circumstances.
2. The complaint Budhu Sahu of village Musapali in the district of Kalahandi claims to have married Mst. Ukia some years back and lived as husband and wife for about two years. Accused Narayan is the father of Ukia. One day Narayan and his wife and accused Janga came to the house of the complainant and took away Ukia on the pretext that her brother was seriously ill. When the complainant went to his father-in-law's house to bring back his wife, they refused to leave her with him and subsequently gave Ukia in marriage to Kunu alias Muralidhar of village Deodharha in the district of Bolangir where both of them lived as husband and wife.
3. The complainant filed a criminal case under sections 497 and 498, I.P.C. against the accused persons on 27-7-60 in the Court of the S.D.M. Nawapara in Kalahandi District. The accused persons, however, were discharged under Section 253(1) Cr. P. C. by an order of the Magistrate, dated 19-4-61, on the ground that the marriage of the complainant with accused Ukia had not been proved. Against this order, the complainant went up in revision before the Sessions Judge, but the revision petition (6/K of 1961) was dismissed on 22-12-61. The complainant thereafter filed another complaint (89/69) before the S.D.M. Nawapara against the same accused persons on the same set of facts under sections 494/498 I.P.C. but the learned magistrate dismissed the said complaint holding that he had no jurisdiction as the marriage of Ukia with Kunu was alleged to have taken place in village Deodarha in the district of Bolangir. Thereafter the complainant filed a third complaint on 27-3-63 in the court of the S.D.M. Patnagarh in the district of Bolangir against the same accused persons on the very same facts. In this case the accused persons pleaded that the complaint petition was not maintainable in view of the previous order of discharge passed by the magistrate, 1st class Nawapara, in case No. 40/61 which was confirmed by the Sessions Judge in Cr. Revision No. 6/K 'of 1961. The learned S.D.M. Patnagarh rejected the contention of the accused persons by his order dated 24-9-63 and proceeded to hear the case. Against this order of rejection, the accused persons preferred Cr. Revision No. 15-B/63 before the Sessions Judge and the learned Sessions Judge while upholding the contention of the accused persons, made a reference to this court mainly, on the ground that the complainant should not be permitted to proceed with the trial against the same accused persons and on the same set of facts as repeated complaints on the same facts were made with a view to harass the accused persons. Therefore the only question for consideration in this reference is whether the proceedings (No. 33 of 1963 IT. R. 114 of 1963) pending in the court of the S.D.M. Patnagarh should be quashed or allowed to proceed.
4. It cannot be disputed that none of the previous orders of discharge can operate as a bar under Section 403, Cr. P. C. to proceed with a fresh trial. But the question is whether after successive complaints had been filed and the accused persons had been discharged, it is proper that the complainant should be permitted to proceed with the case on the very same allegations against the accused persons. The question of law appears to have been settled by a number of decisons of different High Courts in India including our own.
5. In a case reported in AIR 1949 Bom 384 Hansabai Sayaji v. Ananda it was held that while there was nothing in the law against the entertainment of a second complaint on the same facts on which a person had already been discharged after consideration of the evidence produced by the complainant the Magistrate cannot be said to have sufficient ground for proceeding with the complaint within the meaning of Section 203 unless he is satisfied that some additional evidence is forthcoming of which the complainant was not aware previously or which it was not within his power to produce in the previous trial or there has been manifest error apparent on the face of record or manifest miscarriage of justice. It cannot be said that in the interest of justice a party who has obtained a decision from the court after full consideration of his case should be given the opportunity to seek from the very same court or another court of co-ordinate jurisdiction a different decision on the same facts and on the same evidence. The proper remedy for the complainant who is dissatisfied with an order of discharge passed under Sectiqn 253 (1) is to move the superior court to set it aside and order further inquiry in the case under Section 436, Cr. P. C. for otherwise it would be open to the complainant to file a series of complaints on the same facts even after the discharge of the accused in the previous case and thus to continue indefinitely the harassment to the accused.
6. The Patna High Court in a case reported in AIR 1922 Pat 372, Bisoram v. Emperor, held the view that after the order of discharge, prosecution should not be started afresh unless there are new materials before the magistrate which were not available to the complainant previously.
7. The Allahabad High Court also in a case reported in (S) AIR 1957 All 557, Gur Charan v. State, took the view that once an accused has been discharged by a competent magistrate in respect of a particular cause of action, he should not be harassed in successive trials before different magistrates in respect of the same cause of action. Where an accused has been improperly discharged the proper remedy for the complainant is to go up in revision against the said order of discharge and it is for the revisional court to decide whether the discharge was proper or not and in case the discharge is not justified on the materials on record, it may direct further enquiry into the matter and may pass such orders as may be appropriate in the circumstances of the case.
8. In a case reported in In re Koyassan Kutty, AIR 1918 Mad 494, it was observed that though the order of discharge cannot amount to an acquittal within the meaning of Section 203 and there is no prohibition in law against the filing of a second complaint on the same set of facts on which a person has already been discharged, a fresh complaint should not be entertained unless there are very strong grounds made out and some new evidence is discovered, otherwise it would mean unnecessary harrassment to the party.
9. The Calcutta High Court also in a case reported in ILR 28 Cal 211, Queen Empress v. Dolegovind Dass expressed the same view, and observed that unless there is manifest error of record or miscarriage of justice, a Magistrate of co-ordinate jurisdiction should not proceed to hear a case on the same evidence on which the accused has previously been discharged.
10. This court in a case reported in AIR 1958 Orissa 141, Narasingha Raut v. Rameswar Mahapatra, held that there may be occasions when it would not be appropriate to order a second trial even though the second trial may not be barred by the letter of Section 403, Cr. P. C. For instance, successive trials for offences which could be charged under section 235 will be extremely harassing and highly prejudicial to the accused. Hence that should not be permitted.
11. In a case either under Section 494, 497 or 498 the aggrieved party must establish that there was subsistence of a valid marriage between him and his alleged wife at the time of filing the complaint. In the present case in the first trial in case No. 49/60 the learned Magistrate found on evidence that the marriage between the complainant and Ukia was not established. That being so, the complainant had no cause of action to proceed with the filing of fresh complaint either under Section 497 or 498 I. P. C. on the very same allegations, particularly when the order passed by the magistrate was confirmed by the Sessions Judge in Cr. Revision No. 6/K of 1961 and the second complaint was also dismissed as without jurisdiction.
12. Mr. R. C. Ram learned counsel for the opposite party contended that as a result of the second marriage of Ukia with the accused Kunu a child was born to them on 26th April 1961 and this being a new evidence, not available on the date of filing of the first complaint, it was competent for the complainant to file a fresh complaint on the basis of the new evidence. That may be so, but the essential question is whether there was a valid marriage between the complainant and Ukia. When that has not been proved, the subsequent marriage of Ukia either with Kunu or any other person is not relevant to the question at issue. The child was born on 26th April 1961 after the discharge order in case No. 40/60 was passed. But neither in the revision petition nor in the revisional court this fact was brought to the notice of the Sessions Judge to set aside the order of discharge on that ground. Almost two years after the birth of the child, the second complaint was filed on 27th March 1963. In the third complaint which is the subject-matter of the present reference the order of discharge on the 1st complaint appears to have been suppressed. The complainant appears to have taken undue advantage of the process of law and went on filing repeated complaints against the accused on the same set of facts. In view of the fact that five years have elapsed in the meanwhile and the accused persons have been sufficiently harassed by repeated complaints and the fact of marriage of Ukia with the complainant was disbelieved by the trial court, it would not be proper to permit the complainant to proceed with the present case.
13. In the result, the proceeding before the Munsif-Magistrate, Patnagarh, in Cr. Case No. 33 of 1963 is quashed and the Reference is accordingly accepted.