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CASE NO.:

Appeal (crl.) 121 of 2001

Special Leave Petition (crl.) 4103 of 1999

PETITIONER:

JATINDER SINGH & ORS.

Vs.

RESPONDENT:

RANJIT KAUR

DATE OF JUDGMENT: 30/01/2001

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

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J U D G M E N T

THOMAS, J.

Leave granted. The sole question is whether a

complaint, once dismissed by a magistrate for default, can

be refiled? Appellant, who is alleged to have married

twice, and that too with the sibling of the first spouse, is

now aggrieved as the High Court held that there is nothing

illegal in filing a second complaint on the fact situation.

Ranjit Kaur, the undeterred complainant, felt beguiled

by the appellant, whom she described as her lawful husband,

and her younger sister Rajwant Kaur connived with him for

performing a marriage between them clandestinely during the

time when Ranjit Kaur was enceinte. After the child was

born to her she filed the first complaint against Jatinder

Singh the appellant. In the complaint she arrayed the

appellant as the first accused indicting him of the offence

of bigamy (Section 494 IPC) and four others including her

sister Rajwant Kaur were arraigned for abetting the said

offence (Section 109 IPC).

The magistrate before whom she filed a complaint kept

on waiting for holding an inquiry under Section 202 of the

Code of Criminal Procedure (for short the Code). It is a

pity that a complaint filed by the respondent Ranjit Kaur

before the Judicial Magistrate of First Class, Batala

(Punjab) remained in the incubation stage for nearly one

year during which she had to appear in the court on many

occasions without the accused being called to appear. Her

statement was recorded on 12.3.1992 and the statements of

two of her witnesses were recorded many months thereafter.

But on 15.12.1993, the magistrate dismissed the complaint

merely because she was not present inside the court when the

case was called. Instead of taking up the matter to higher

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courts Ranjit Kaur has chosen to file another complaint

dated 15.2.1993 before the same magistrate containing the

same allegations as stated in the first complaint. However,

the magistrate this time took cognizance of the offence and

issued process to the accused persons mentioned in the

complaint.

The appellant first filed a revision petition before

the Sessions Court after getting summons from the

magistrate, but when he felt its maintainability doubtful he

withdrew the revision petition and moved the magistrate for

dismissal of the complaint on the sole ground that another

complaint, containing the same allegations, was dismissed

earlier. The magistrate overruled his objections and

proposed to proceed with the case, but the appellant

succeeded in stalling the proceedings as the Sessions Judge

entertained a revision petition once again filed by the

appellant.

That revision was allowed by the Sessions Judge and

there was a temporary reprieve for the appellant from court

proceedings. But the complainant, with alacrity, moved the

High Court by a revision petition in challenge of the order

passed by the Sessions Judge. A learned Single Judge of the

High Court of Punjab and Haryana, by a very short order,

revived the magistrates order and upset the order passed by

the Sessions Judge. It is the said brief order passed by

the Single Judge which the appellant has assailed now by

special leave.

This is what the High Court has stated in the impugned

order: The earlier complaint was dismissed on 2.12.1992

but not on merits. It was dismissed in default. In those

circumstances, the second complaint was maintainable and

rightly held by the Magistrate that special reasons have

been advanced in the second complaint.

Learned counsel for the appellants raised two

contentions before us. The first is, dismissal of the first

complaint, whether for default or on merits, has the same

effect of exonerating the accused of the allegations and so

long as that order remains, a second complaint is not

maintainable in law. The other contention is that the

complainant in her second complaint suppressed the fact that

her first complaint was dismissed and hence the second

complaint should have been dismissed for want of bona fides.

There is no provision in the Code or in any other

statute which debars a complainant from preferring a second

complaint on the same allegations if the first complaint did

not result in a conviction or acquittal or even discharge.

Section 300 of the Code, which debars a second trial, has

taken care to explain that the dismissal of a complaint or

the discharge of an accused is not an acquittal for the

purpose of this Section. However, when a magistrate

conducts an inquiry under Section 202 of the Code and

dismisses the complaint on merits, a second complaint on the

same facts cannot be made unless there are very exceptional

circumstances. Even so, a second complaint is permissible

depending upon how the complaint happened to be dismissed at

the first instance.

Under Section 202 of the Code a magistrate is

conducting an inquiry before issuing the process to the

accused, for the purpose of determining whether there is

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sufficient ground for proceeding. Section 203 of the Code

empowers him to dismiss a complaint after holding such

inquiry if he is of opinion that there is no sufficient

ground for proceeding. In that event he has to record the

reasons as to why he held that there is no sufficient ground

for proceeding, though he need not write an elaborate order.

Section 203 of the Code reads thus: 203. Dismissal of

complaint.- If, after considering the statements on oath (if

any) of the complainant and of the witnesses and the result

of the inquiry or investigation (if any) under section 202,

the Magistrate is of opinion that there is no sufficient

ground for proceeding, he shall dismiss the complaint, and

in every such case he shall briefly record his reasons for

so doing.

A four Judge Bench of this Court said in Chandra Deo

Singh vs. Prokash Chandra Bose (AIR 1963 SC 1430) as to the

effect of not recording reasons while dismissing a complaint

under Section 203 of the Code. This is what the learned

Judges said on that score: The complainant is entitled to

know why his complaint has been dismissed with a view to

consider an approach to a revisional court. Being kept in

ignorance of the reasons clearly prejudices his right to

move the revisional court and where he takes a matter to the

revisional court renders his task before that court

difficult.

If the dismissal of the complaint was not on merit but

on default of the complainant to be present there is no bar

in the complainant moving the magistrate again with a second

complaint on the same facts. But if the dismissal of the

complaint under Section 203 of the Code was on merits the

position could be different. There appeared a difference of

opinion earlier as to whether a second complaint could have

been filed when the dismissal was under Section 203. The

controversy was settled by this Court in Pramatha Nath

Talukdar vs. Saroj Ranjan Sarkar (AIR 1962 SC 876). A

majority of Judges of the three Judge Bench held thus: An

order of dismissal under S.203, Criminal Procedure Code, is,

however, no bar to the entertainment of a second complaint

on the same facts but it will be entertained only in

exceptional circumstances, e.g., where the previous order

was passed on an incomplete 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 the record in the

previous proceedings, have been adduced. It cannot be said

to be in the interest of justice that after a decision has

been given against the complainant upon a full consideration

of his case, he or any other person should be given another

opportunity to have his complaint enquired into.

S.K. Das, J. (as he then was) while dissenting from

the said majority view had taken the stand that right of a

complainant to file a second complaint would not be

inhibited even by such considerations. But at any rate the

majority view is that the second complaint would be

maintainable if the dismissal of the first complaint was not

on merits.

We do not find much force in the next contention that

the complainant lacked bona fides as he suppressed the fact

of dismissal of the first complaint. We cannot overlook the

fact that the second complaint was filed before the same

magistrate who dismissed the first complaint, and that too

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was done within a short interval. Even otherwise, nothing

would turn out from the mere fact that the complaint did not

contain an averment that the first complaint was dismissed

for default.

As the magistrate did not consider the materials on

record when he dismissed the first complaint, instead the

said course was adopted by him only as a consequence of the

default of complainant presenting herself when the case was

called, there is no reason to shut the door before her once

and for all. The High Court has correctly interfered with

the order of the Sessions Court by restoring the complaint

and the proceedings initiated thereon. We therefore dismiss

this appeal.