M.Wahajuddin - (1.) THIS criminal revision by Sukhraj and 19 others is directed against the order dated 12-3-1980 of the then II Additional Munsif Magistrate in Criminal Case No. 1393 of 1979, Kamta v. Sukhraj, summoning the revisionists. It is prayed that the order may be set aside and quashed.
(2.) IT would appear that an earlier complaint was filed by the complainant, opposite party no. 2, against the revisionist regarding the same alleged incident and the complaint in question was dismissed on 9-7-1979, after recording statements under Sections 200 and 202, CrPC, observing that neither any first information report, nor any injury report has been filed and the complaint is not worth summoning the accused persons. Thereafter on a fresh complaint, the Magistrate passed the impugned order dated 12-3-1981. In that order itself a reference has been made to the earlier order of the dismissal of the complaint. The Magistrate, however, observed that a carbon copy of the application preferred by the complainant to the Superintendent of Police Ghazipur, on 10-5-1979 has been filed and it explains the non-filing of any report at the Police Station itself. With such observations and making mention of the witnesses produced and also referring to the carbon copy, the Magistrate proceeded to summon the revisionists under various sections. A large number of persons figure as accused in this case. While dismissal of any complaint under Section 203, CrPC does not necessarily bar any fresh complaint, the well established principle of law is that the fresh complaint can be entertained only when it is established that certain material produced in the proceedings of the second complaint could not be produced earlier for sufficient reasons and the new material so produced helps in establishing a prima facie case. In fact, earlier there were same controversies between different High Courts, but the matter was resolved by the pronouncement in the case of Pramatha Nath v. Saroj Rajan AIR 1962 SC 876. It was observed as follows : "With respect to the question of fresh evidence on which a second complaint on the same facts may be entertained! when first complaint is dismissed, the view of some of the High Court that it should toe such that it could not with reasonable diligence have been adduced is a correct view of the law."
(3.) IN the present case, on a perusal of the statement of the complainant under Section 200, CrPC as well as on the perusal of his affidavits furnished before the Magistrate, I do not find any explanation why the copy of complaint to S. P. furnished in support of the second complaint was not filed when the first complaint was pending. It is not shown that it could not with reasonable diligence be adduced in the proceedings relating to the first complaint. The complainant could have easily filed it, when the first complaint was entertained and heard at the stage of Section 202, CrPC. The carbon copy that has been filed also could not be looked into. INdian Evidence Act expressly provides that secondary evidence can be entertained only on a proof that primary evidence is not available. IN case of any document, it should be established that the original is not available or could not be procured for any convincing reasons and only then any copy of such original can be entertained. The original in the present case could have easily been summoned from the office of the Superintendent of Police concerned, which has not been done. Secondly, the formal proof of the copy is also lacking. Criminal proceedings are not meant for harassment, if repeated complaints are filed and entertained in this manner harassment would be necessarily caused. In the present case the number of persons figuring as accused is very large. I hold that the order of the Magistrate summoning the revisionists cannot be sustained, when in reality it is based upon the same material, which were before the Magistrate during the proceedings on the first complaint, and when it is also not accounted for why the alleged carbon copy, now furnished, was not produced in the earlier proceedings.;