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Muralidhar Kunar Vs. Bhagaban Kunar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1967CriLJ1238
AppellantMuralidhar Kunar
RespondentBhagaban Kunar
Cases ReferredPramathanath v. Saroj Eanjan. Their Lord
Excerpt:
.....learned counsel for the petitioner is that in view of the dismissal of the previous complaint, a fresh complaint on the very same facts is not entertainable except on exceptional circumstances which have not been made out in this case and as such the proceedings should be quashed. the position of law is well settled that the dismissal of a complaint tinder section 203, criminal p. the legal position is equally well settled that although previous order dismissing the complaint under section 203 is no bar for the institution of a fresh complaint, still a fresh complaint in respect of the same offence should not be entertained unless there are exceptional circumstances. ananda took the view that unless the magistrate is satisfied that some additional evidence is forth coming, of which the..........on 26.10-64, under section 203, criminal p. c.thereafter on 24-12.64 the complainant filed a fresh complaint in respect of the very same occurrence against the very same persona and that complaint was registered as case no. 235 of 1964 in the court of the s.d.m. anandapur, and was again sent for enquiry under section 202, criminal p. c. to sri d. p. mohanty, magistrate 1st class. in the second enquiry after examining some more witnesses, sri mohanty submitted a report saying that a prima facie case had been made out against some of the accused persons including the petitioner. the learned sub-divisional magistrate by his order dated 20.4-65 summoned the petitioner under section 395/114, penal code and others under sections 147, 393 and 352, penal code. it is against this order of.....
Judgment:
ORDER

B.K. Das, J.

1. The opposite party lodged an information before the police alleging that the petitioner and 11 others committed a dacoity in his house on 11-6-64. After investigation the police submitted final report saying that the case is true, but the evidence insufficient. Thereafter the opposite party filed a complaint which was registered as case No, 166/64 and sent for enquiry under Section 202, Criminal P. C. to Sri D. Mohanty, Magistrate 1st class, Anandapur. In course of the said enquiry, the wife of the opposite party was examined. But a petition was filed by the complainant saying that the case had been settled amicably and that he does not want to proceed with the case. The Magistrate thereafter recommended to drop the proceeding as there was no sufficient evidence to make out a prima facie case against the persons complained. On receipt of the enquiry report, the Sub-Divisional Magistrate dismissed the complaint on 26.10-64, under Section 203, Criminal P. C.

Thereafter on 24-12.64 the complainant filed a fresh complaint in respect of the very same occurrence against the very same persona and that complaint was registered as case No. 235 of 1964 in the court of the S.D.M. Anandapur, and was again sent for enquiry under Section 202, Criminal P. C. to Sri D. P. Mohanty, Magistrate 1st class. In the second enquiry after examining some more witnesses, Sri Mohanty submitted a report saying that a prima facie case had been made out against some of the accused persons including the petitioner. The learned Sub-divisional Magistrate by his order dated 20.4-65 summoned the petitioner under Section 395/114, Penal Code and others under Sections 147, 393 and 352, Penal Code. It is against this order of the learned Sub-Divisional Magistrate, the petitioner alone has come up with this revision.

2. The main contention of the learned Counsel for the petitioner is that in view of the dismissal of the previous complaint, a fresh complaint on the very same facts is not entertainable except on exceptional circumstances which have not been made out in this case and as such the proceedings should be quashed. The position of law is well settled that the dismissal of a complaint tinder Section 203, Criminal P. C. cannot be equated with an order of acquittal so that a fresh complaint will be barred under Section 403, Criminal P. C. There is nothing in law against entertainment of a second complaint on the same facts on which an accused had already been discharged. The legal position is equally well settled that although previous order dismissing the complaint under Section 203 is no bar for the institution of a fresh complaint, still a fresh complaint in respect of the same offence should not be entertained unless there are exceptional circumstances.

3. The Bombay High Court in a case reported in AIR 1949 Bom 384, Hansabai v. Ananda took the view that unless the Magistrate is satisfied that some additional evidence is forth coming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest miscarriage of justice, the Magistrate cannot be said to have sufficient ground for proceeding with the fresh complaint. It cannot be said to be in the interests of justice that a party who has obtained a decision from a Court after a full consideration of his case, should be given an opportunity to seek from the 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 Section 253 (1) is to move the Supreme Court to set it aside.

4. The same view has also been expressed by the Patna High Court in a case reported in AIR 1949 Patna 256, Bam Narain v. Panchand Jain. It was held that although a previous order of dismissal of a complaint under Section 203 is no bar to the institution of a fresh complaint against the same accused, still a new complaint in respect of the same offence should not be entertained unless there are exceptional circumstances, such as where new facts which could not with reasonable diligence have been brought forward in the previous proceedings are adduced or there has been some manifest error in the previous proceeding or the previous order was passed on an incomplete record or misunderstanding of the nature of the complaint. The Lahore High Court in the case reported in AIR 1930 Lah 879. Allahditta v. Karan Bux and the Madras High Court in the case reported in AIR 1918 Mad 484 (FB), Doraisatni v. Subramania, also took the same view.

5. A similar question whether a second com-plaint is permissible and if so under what circumstances came up for consideration before the Supreme Court in a case reported in : AIR1962SC876 , Pramathanath v. Saroj Eanjan. Their Lord-ships reviewed the decisions of different High Courts of India, and held that an order of dismissal under Section 203, Criminal P. C. is however no bar to the entertainment of a second complaint on the same facts, but; it can be entertained only in exceptional circumstances such as where the previous order was passed on an incomplete re-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 record in the previous proceeding have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant on a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. On the question of taking fresh evidence, it was held that the correct position of law is that it should be such that it could not with reasonable diligence have been adduced. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on.

Thus the Magistrate cannot act on the fresh complaint as a matter of routine, but shall examine about the existence of any exceptional circumstances which necesssitated the second complaint. What exactly are the exceptional circumstances, is rather different to list out exhaustively and any such list may at best be illustrative. The 'exceptional circumstances' so far laid down by the authorities are : (1) manifest error; (2) miscarriage of justice; (3) Adducing of new facts which the complainant could not have discovered despite due diligence and (4) where the previous Order was passed on an incomplete record or misunderstanding of the nature of the complaint.

6. Keeping in view these principles, let us examine if any such exceptional circumstances have been made out in this case. We are concerned here with the scope of as. 202 and 203, Criminal P. C. The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in Order to determine whether process should issue or not. Section 203 lays down what materials are to be considered for the purpose. At that stage, the Magistrate has to form his judgment on the basis of the statement of the complainant and his witnesses and the result of the investigation or enquiry if any. When the first complaint was sent to the Magistrate for enquiry under Section 202, the complainant examined his wife who claimed to be an eye-witness to the occurrence, but did not examine any other witness on the ground that there is a talk of settlement in the village.

The Magistrate held that though the evidence disclosed that some offence was committed, he took the view that in the absence of any corroborative evidence, a prima facie case was not made out. As the complainant was unable to proceed with the case, he recommended the case to be dropped. On the basis of the said report, the S. D. M. by order dated 26-10-64 dismissed the complaint under Section 203, Criminal P. 0.

Thus the first dismissal was not based upon any determination of the question whether there was 'sufficient ground' to proceed as contemplated under Section 203, Criminal P. C. but merely because the enquiring officer recommended to drop the proceedings. The complainant again filed a fresh complaint on 24-12.64, wherein he alleged all the circumstances for which he did not proceed to examine his witnesses. This time the S. D. M. again sent for an enquiry to a Magistrate and there the complainant examined his witnesses and the enquiring Magistrate found a prima facie case against some of the accused persons, and on the basis of this report the S. D. M. on 20-4-65 summoned the accused persons. It is apparent that the previous complaint was dismissed on the basis of incomplete record and has resulted in the miscarriage of justice, particularly when the first enquiring Magistrate found that the evidence disclosed the commission of some offence though he recommended the dropping of the proceeding mainly on the ground that the complainant had filed a petition saying that the matter was going to be settled in the village.

Thus a case of manifest injustice appears to have been made out in this case which may be taken as an exceptional circumstance for entertaining a second complaint. Unfortunately the S. D. M. in his order dated 20-4-65 has not dealt with any of the circumstances which undoubtedly was his duty to do which actuated him to take action on the second complaint even though the first complaint was dismissed.

7. I shall not be taken to have expressed any opinion about the merit of the case at this stage since I am merely concerned with the question whether the entertainment of the second complaint was justified under the circumstances of this case.

8. There is no merit in this application and the revision is dismissed.


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