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Munsif Ali and ors. Vs. Ayub Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Ref. No. 101 of 1963
Judge
Reported inAIR1964Raj183; 1964CriLJ342
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 203, 253, 253(1), 259 and 436
AppellantMunsif Ali and ors.
RespondentAyub Khan and anr.
Advocates: Raj Narain, Dy. Govt. Adv.
Cases ReferredTejsingh v. Birds
Excerpt:
.....the accused on the basis of the evidence which was examined by the complainant by that time. the learned judge has recommended that the order of the magistrate issuing processes against the accused should be set aside. he also did not give any explanation as to why he failed to put in appearance in spite of his being called by the court through its reader. unlesshe is satisfied that some additional evidence is forthcoming, of which the complainant was not previously awareor which it was not, within his power to produce in theprevious trial, or that there has been manifest error ap-parent on the face of the record or manifest miscarriageof justice. it was incumbent upon the magistrate to inquire from the complainant as to why he had knowingly absented himself from attending the court on..........order, the accused presented revision application in the court of sessions judge, jhunjhunu. the learned judge has reported that although the previous complaint was dismissed by the magistrate in the absence of the complainant, yet the magistrate had taken into consideration all the evidence which was produced before it, before passing the order of discharge. in the opinion of the learned judge, the second complaint was presented after the lapse of a long period of 15 months simply to hold up the proceedings in a cross-complaint which was pending against the comprainant and which had reached the stage of final arguments. the learned judge has recommended that the order of the magistrate issuing processes against the accused should be set aside.4. nobody has cared to appear in this.....
Judgment:
ORDER

D.S. Dave, Actg. C.J.

1. This reference comes on, the report of the learned Sessions Judge, Jhunjhunu, dated the 10th May, 1963.

2. The facts giving rise to it are that one Ayub Khan filed a complaint for offences under Sections 147, 323, 307 and 504 of the Indian Penal Code against Munsif Ali and eight others in the Court of Sub-Divisional Magistrate, Jhunjhunu, on 8th September, 1960. On 20th July, 1961 that complaint was dismissed by the Court and the accused were discharged on the ground that the complainant was absent on the previous date of hearing andin spite of a notice having been issued to him, he failed to put in appearance on 20th July, 1961. It was also observed by the Court that no case was made out against the accused on the basis of the evidence which was examined by the complainant by that time. It was alsonoted that the complainant was present at Jhunjhunu and the Reader was sent to call him to the Court and even then he did not care to be present or to produce further evidence.

3. On 20th October, 1962, the same complainant Ayub Khan presented another complaint for the same offences, on the same facts against the same nine accused, in the Court of First Class Magistrate, Jhunjhunu. The Magistrate took cognizance of the case and issued processes against the accused. Thereupon, the accused presented an application on 19th January, 1963 requesting the court to dismiss the second complaint. This application was turned down by the court on 18th March, 1963. Aggrieved by this order, the accused presented revision application in the Court of Sessions Judge, Jhunjhunu. The learned Judge has reported that although the previous complaint was dismissed by the Magistrate in the absence of the complainant, yet the Magistrate had taken into consideration all the evidence which was produced before it, before passing the order of discharge. In the opinion of the learned Judge, the second complaint was presented after the lapse of a long period of 15 months simply to hold up the proceedings in a cross-complaint which was pending against the comprainant and which had reached the stage of final arguments. The learned Judge has recommended that the order of the Magistrate issuing processes against the accused should be set aside.

4. Nobody has cared to appear in this Court on behalf of the complainant. Learned Deputy Government Advocate supports the Reference.

5. I have gone into the record of the court of the First class Magistrate and carefully perused the second complaint dated 20th October, 1962. I find that although the complainant had mentioned therein that his first complaint dated 8th September, 1960 was dismissed on 20th July, 1961 on account of his non-prosecution, he had not even a word to say as to why he absented himself from the Court on 20th July, 1961 and also on the previous date of hearing. He also did not give any explanation as to why he failed to put in appearance in spite of his being called by the Court through its Reader. Similarly, no explanation was given as to why he did not examine all the witnesses before his first complaint was dismissed. It may be further pointed out that he had not the courage even to allege that a prima facie case was made out against the accused on the basis of the evidence which he had examined earlier or that the order of the Court was incorrect. In the absence of any such explanation, the Magistrate ought not to have entertained a second complaint specially when it was filed after the lapse of a long period of 15 months since the date of the dismissal of the previous complaint. It is true that an order of discharge under Section 253 or 259 of the Code of Criminal Procedure does not by itself debar the complainant from filing a second complaint, but, as observed in Hansabai Sayaji v. Ananda Ganuji, (AIR 1949 Bom 384),

'the Magistrate on a second complaint cannot besaid to have sufficient ground for proceeding with thecomplaint within the meaning of Section 203, Cr. P. C. unlesshe is satisfied that some additional evidence is forthcoming, of which the complainant was not previously awareor which it was not, within his power to produce in theprevious trial, or that there has been manifest error ap-parent on the face of the record or manifest miscarriageof justice.'

The learned Judges proceeded to observe that:

'it cannot be said to be in the interests of justice that a party who has obtained a decision from a Courtafter 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 superior court to set it aside and order further enquiry in the case under Section 436, Cr. P. C. For, otherwise, it would be open to a complainant to file a series of complaints on the same facts, a new complaint being brought as soon as or shortly after the accused had been discharged in the previous case, and thus continue indefinitely the harassment of the accused.'

6. This view was followed by a learned Judge of this Court in Tejsingh v. Birds, ILR (1959) 9 Raj 483. It appears that Tejsingh's case, ILR (1959) 9 Raj 483) was cited before the Magistrate, but he did not follow the. correct import of that case intelligently. It was incumbent upon the Magistrate to inquire from the complainant as to why he had knowingly absented himself from attending the Court on the previous two occasions and why he failed to put in all the evidence at that time. The Court should have also put to the complainant as to why he kept silent for a period of fifteen months after the dismissal of his last complaint. It was obvious that the complainant had not cared to prostcute his case when it was dismissed on 20th July, 1961 and the second complaint was made by him either to harass the accused or to use it as a handle for delaying the trial of the cross-complainant. The Magistrate ought not to have allowed the complainant to use it as a medium for harassing the accused. In my opinion, the reference made by the learned Sessions Judge is quite in order and deserves to be accepted.

7. The reference is, therefore, allowed and the impugned order of the Magistrate and the proceedings taken by him are quashed.


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