- (1.) PALOK Basu, J. Heard Sri Vinod Prasad, learned Counsel for the appli cants at length. The Magistrate had on an earlier occasion summoned the accused-applicants and then dismissed the complaint under Sec. 245, Cr. P. C. on the ground that there was no evidence coming forth. After sometime the complainant filed the second complaint stating therein that on the date or, which the dismissal order was passed he could not produce his evidence. The Magistrate has on the second complaint summoud the accused-applicants. Reliance was placed upon the case of Maj. General A. S. Gauraya v. 5. N, Thakur A. G. R. , 1986 Alld Cri Ruling 500. The said case is distinguishable on the facts. The question involved in that case was whether the Magistrate's Court had inherent powers to restore a complaint once he had dismissed it earlier. Relying upon the earlier decision of Bindeshwari Prasad Singh, reported in AIR 1977 Supreme Court Page 1440, their Lordships laid down that such a power was not available with the Magistrate.
(2.) SO far as the question of the Magistrate's power to entertain and go ahead with the filing of the second complaint, reliance was placed by their Lordships on the earlier Supreme Court decision report in AIR 1962 Supreme Court, page 876 - Pramatha Natha Talukdafs case. In the said case it has been observed as under : "filing of a second complaint is not the same thing as reviewing a dis missed complaint after re-calling the earlier order of dismissal. The Criminal Procedure Code, does not contain any provision enabling the criminal courts to exercise such an inherent power. " In this view of the matter, it cannot be said that no second complaint could be filed regarding the incident which was the subject-matter of the first complaint and which stood dismissed because of the non-production of the evidence on the last date of hearing. Consequently, there no force in this argument of Sri Vinod Prasad. It was then argued that in the instant case all the sections were triable as summons case and, therefore, the dismissal of the complaint would amount to an acquittal. The sections involved in the present complaint are Sections 147/323/427/504/506, I. P. C. A perusal of the complaint indicates that ingredients of second part of Section 506, I. P. C. are made out and that is punishable with 7 years R. 1. Consequently, this complaint has to proceed as warrant trial. This argument, therefore, is also misconceived.
(3.) THEN it was argued vehemently that in so far as applicants are con cerned they are being harased continuously for last several years. It was brought to the notice of this court that all the applicants had surrendered earlier and were bailed out and pressented themselves during trial. It is again argued that if such procedure of harassment is resorted and put up by the complainant, there may not be any end of the prosecution of the accused-applicants. In view of the aforesaid arguments it is hereby directed that in case the applicants are arrested and brought before the competent Court or surrender be;ore it and make an application for bail, the said bail application shall be disposed of in accordance with law on the day it, is moved. It is further directed that in case the applicants make an application for personal exemption under Section 205, Cr. P. C. the court shall decide the said application sympathatically on the day it is moved and the presence of applicants may be taken through Counsel appearing on their behalf, unless their presence is mandtorily required under the law. Sri Vinod Prasad learned Counsel for applicants drew attention of this court to the fact that warrants have been issued by the Magistrate. He further makes a statement that all the accused-applicants shall surrender on or before 8-12-1989 in response to the process/summons issued by the Magistrate. In view of the aforesaid argument it is hereby directed that the warrants issued shall not be executed and would remain stayed till 11-12-89.;