BISHNU PRASAD SHARMA Vs. KHARGA SINGH RAI
LAWS(SIK)-1983-5-1
HIGH COURT OF SIKKIM
Decided on May 27,1983

BISHNU PRASAD SHARMA Appellant
VERSUS
KHARGA SINGH RAI Respondents


Referred Judgements :-

PULIN BEHARI DAS V. KING EMPEROR [REFERRED TO]
PAMPAPATHY V. STATE OF MYSORE [REFERRED TO]
SIDRAMAYA V. EMPEROR [REFERRED TO]
C. DUM V,EMPEROR [REFERRED TO]
BUDHU LAL V. CHATTU GOPE [REFERRED TO]
PIGOT V. AU MUHAMMAD MANDAL [REFERRED TO]
DWARKA NATH V. BENI MADHAVE [REFERRED TO]
MIR AHMED HUSSAIN V. MOHAMMED ASKARI [REFERRED TO]
BINDESHWARI PRASAD SINGH V. KALI SINGH [REFERRED TO]
MAPPILLAISAMI V. MUTHUSWAMI [REFERRED TO]
HUKUM CHAND BOID V. KAMALANANDA SINGH [REFERRED TO]
NAND KISHORE SINGH V. RAM GOLAM SAHU [REFERRED TO]
TALAB HAJI HUSSAIN VS. MADHUKAR PURSHOTTAM MONDKAR [REFERRED TO]
MANOHAR LAL CHOPRA VS. RAI BAHADUR RAO RAJA SETH HIRALAL [REFERRED TO]
PRAMATHA NATH TALUKDAR SURENDRA MOHAN BASU VS. SAROJ RANJAN SARKAR [REFERRED TO]
RAGHUBIR SARAN VS. STATE OF BIHAR [REFERRED TO]
STATE OF UTTAR PRADESH VS. MOHAMMAD NAIM [REFERRED TO]
JAIPUR MINERAL DEVELOPMENT SYNDICATE JAIPUR VS. COMMISSIONER OF INCOME TAX NEW DELHI [REFERRED TO]
SAURENDRA MOHAN BASU VS. SAROJ RANJAN SARKAR [REFERRED TO]
STATE VS. MEHAR SINGH [REFERRED TO]
EMPEROR VS. KHWAJA NAZIR AHMAD [REFERRED TO]
KESAR CHAND VS. UTTAM CHAND [REFERRED TO]


JUDGEMENT

A.M.Bhattacharjee, J. - (1.)The learned Judicial Magistrate, on receipt of the complaint on transfer from the District Magistrate on 20.11.1979 thought it fit to postpone issue of process and to inquire into the case himself under section 202 of the Code of Criminal Procedure and, after taking about 16 months to make such inquiry, ultimately dismissed the complaint on 25.3.1981 under section 203 of the Code, finding no sufficient materials to proceed further. On an application filed by the complainant praying for revival of the case, the learned Magistrate registered the same as a separate Misc. Case on 23-7-1981, issued notice on the accused-opposite party and on the appearance of the later handed over a copy of the application to him for filing objection. If any and on receipt of his written reply on 18.3.1982, heard the parties on 26.4.1982 and finding that the 0. p. has no objection to the application, ordered that the dismissed case stands accordingly revived and the dismissed case, therefore, stood revived about 13 months after the same was dismissed. And then, after proceeding with the revived complaint for about 7 months, the learned Magistrate found that this case was restored through inadvertence and ordered that further proceedings thus stand closed. The complainant, having felt aggrieved with this fate of his complaint after a long lapse of about 3 years, has moved this court in revision. I very much regret that it took the learned Magistrate about 16 months to decide that there was no case for issuance of process and to dismiss the complaint and then another period of about l3months to revive the dismissed complaint and thereafter again a period of about 7 months to realize that the revival was wrong, and an examination of the records of the Magistrate has convinced me that with a little more care and concern the learned Magistrate could have effected a much earlier termination of the proceedings in his Court. But such unhappy handling of the case notwithstanding, I am afraid that it will not be possible for me to intervene in the exercise of revisional jurisdiction in this case and the revisional application will have, to be dismissed.
(2.)A dismissal of a complaint under section 203, Code of Criminal Procedure, does not bar a fresh complaint. No judicial authority is necessary for this proposition as the statutory authority therefore is provided in the Explanation to Section 403 of the Code of Criminal Procedure, 1898, that being the Code, still, applying in Sikkim. While Section 401, incorporating inter alia the principle of asteroids acquit, provides that a person who has once been tried by a court of competent jurisdiction for and offence an acquitted of such offence, shall while such acquittal remains in force, not be able to be tried again for the same offence, nor on the same facts for any other offence for which he might have been charged or convicted the Explanation added thereto clearly provides that the dismissal of a complaint is not acquittal for the purpose of this Section. That would have been the position even without the Explanation as the section bars a fresh trial only when a person has once been tried, while a complaint is dismissed under section 203 before the commencement of any trial, which can only begin after, the process is issued and the accused appears. A fresh complaint after the dismissal of an earlier one under section 203 can not also obviously attract the bar under Article 20(2) of the Constitution, which embodies the principle nemo his vexari and prohibits prosecution and punishment of a person for the same offence more than once, because when a complaint is dismissed under section 203 of the Code of Criminal Procedure before the issuance of any process, none is prosecuted or punished thereby. In fact there is a myriad of precedents for the view that the dismissal of a complaint under section 203 does not, as it, in view of the provisions of section 403 and the Explanation thereto, can not, bar a fresh complaint on the same facts; but some of them, for example, the seven-Judge Bench decision of the Calcutta High Court in Dwarka Nath v. Beni Madhave1 followed by the five-Judge Bench decision of the same High Court in, Mir Ahmed Hussain v. Mohd. Askari and the much later three-Judge Bench decision of that Court in Saurendra Mohan v. Saroj Ranjan ruled that the exercise of such right was to be restricted to cases in which fresh evidence was forthcoming. The Calcutta Full-Bench in Saurendra Mohan (supra), however, ruled further that there was no reason to restrict such fresh evidence only to those facts which could not with reasonable diligence have been brought forward in the previous proceedings and that there was no justification in importing the provisions of Order XL VII, Rule 1 of the Civil Procedure Code where under discovery of new matter of evidence would entitle a person aggrieved to apply for a review of a decree or order only when such matter or evidence, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made In the Supreme Court decision in Pramatha Nath v. Saroj Ranjan, which reversed the Calcutta Full-Bench decision in Saurendra Mohan v. Saroj Ranjan (supra), it was, however, observed (at 899) by Kapur, J., speaking for the majority, that an order of dismissal under Section 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 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, and that 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 any other opportunity to have his complaint enquired into. Therefore, though the lexscripta enacted by the Legislature does not appear to bar a fresh complaint when the earlier one has been dismissed under section 203, the Judicial dicta of our apex Court would bar it except in exceptional circumstances and some such circumstances which have been mentioned are-(l) where the previous order was passed (a) on an incomplete record, or (b) on a misunderstanding of the nature of the complaint, or (2) when it was manifestly absurd, unjust or foolish, or (3) where new facts have been adduced which could not, with reasonable diligence, have been brought on the record in the previous proceedings. These are obviously illustrative and not exhaustive and there may be other circumstances also to justify entertainment of a fresh complaint, but the circumstances, as ruled by the Supreme Court in Pramatha Nath v. Saroj Raran (supra), must, however, be exceptional. But, as already noted, the learned Magistrate in this case revived the complaint though earlier dismissed by him on a, full consideration of the materials before him, simply and solely on the ground that the party against whom the complaint was lodged signified his no-objection thereto. This circumstance was by no means exceptional, and rather, the learned Magistrate himself adopted an exceptional and exceptionable course in restoring or reviving a dismissed complaint on the sole ground that the party against whom it was lodged but against whom the Magistrate himself found no reason to issue process, appeared on receipt of the notice of the application for revival and did not object to the revival as prayed for. This, by itself, can never be a ground to justify revival or restoration of a complaint dismissed under section 203 of the Code, even if the learned Magistrate had otherwise the power to effect such revival, or restoration under the law.
(3.)Referring to and relying on Pramatha. Nath v. Saroj Ranjan (supra), the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh has observed that it is now well settled that the second, complaint can lie only on fresh facts or even on the previous facts only if a special case is made out and pointed out that in that case before the Supreme Court, there was no fresh complaint. The expression second complaint in Pramatha Nath (supra) or the expressions fresh complaint or second complaint in Bindeshwari Prasad (supra) should not, however, be construed to mean that the petition of complaint which has been dismissed, can no longer be of any avail and a new one has got to be lodged because the Code of Criminal Procedure, which defines a complaint in section 4(h) does not require a petition in writing and all that should be necessary is a fresh cognizance only, and not that the complainant has got to re-write or re-make a fresh or a second copy of the earlier complaint or to draft a new one, as pointed out by a Division Bench of the Madras High Court in Mappillaisami v. Muthuswamy. Once a special case is made out for fresh cognizance and cognizance is taken, it would not matter whether the earlier copy of the complaint or a new or are-drafted copy has been made the foundation for such cognizance and it would be equally immaterial whether the same is labeled as a revived complaint or a second complaint. But unless such a special case is made out for fresh cognizance and cognizance is taken afresh, the earlier complaint must be taken to have died beyond all possibilities of resuscitation or resurrection.


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