- (1.) Brief facts of the case are that on 27.01.1998 petitioner/complainant Girdhari Lal along with his wifeKamla Devi was present at his house. In the meantime, respondent No.1-Yashpal Singh armed with a dang and respondent No.2 -Darshana Devi armed with a stick caught hold of petitioner No.1/complainant and his wife and inflicted injuries by means of the stick and dang. The complainant/petitioner and his wife were medico-legally examined vide MLRs (Annexures P-4 and P-5). The petitioner filed a complaint bearing No.33 dated 11.06.2001 before learned Judicial Magistrate Ist Class, Dasuya, against the respondents for the offences punishable under Sections 323, 325, 452 and 506 read with Section 34 of the IPC.
(2.) The said complaint was dismissed on 07.11.2001 by learned Judicial Magistrate Ist Class, Dasuya, by passing the following order:- "Present: None. Complaint called several time but neither the complainant nor any counsel appeared on behalf of the complainant. It is already 2.30 p.m. Accordingly, this complaint filed by the complainant is hereby dismissed in default. File be consigned to the record room, Hoshiarpur." The petitioner filed the present/second complaint on 24.03.2003 on the same allegations as contained in the first complaint. The learned Judicial Magistrate Ist Class, Dasuya, vide order dated 14.03.2005 summoned the respondents to face trial for the offences punishable under Sections 323, 325, 452 and 506 read with Section 34, IPC. Dis-satisfied with the summoning order dated 14.03.2005, the respondents-accused filed a revision petition before learned Additional Sessions Judge, Hoshiarpur. The said revision petition was accepted vide judgment dated 14.02.2008 primarily on the ground that second complaint was not maintainable. The petitioner/complainant has challenged the judgment dated 14.02.2008 by way of the present petition filed under Section 482, Cr.P.C. Learned counsel for the petitioner/complainant contended that the learned Additional Sessions Judge had wrongly concluded that second complaint on the same facts was not maintainable. There is force in the arguments raised by the learned counsel for the petitioner/complainant. The first complaint dated 11.06.2001 was dismissed on 07.11.2001 prior to the summoning of the respondents/accused. By that time, the learned Judicial Magistrate Ist Class, had not decided the first complaint on merits, therefore, there was no bar for the complainant to file the second complaint on the same facts. The Hon'ble Supreme Court in Pramathna Nath Talukdar vs. Saroj Ranan Sarkar, 1962 AIR(SC) 876, held that the entertainment of the second complaint on the same facts was not barred where the first complaint was dismissed. In exceptional circumstances, the second complaint could be entertained. The Hon'ble Rajasthan High Court in Kishorilal and others vs. Mst. Santosh, 1987 CrLJ 140, held that where the first complaint was dismissed for default and the accused were discharged then the second complaint on the same facts was not barred, the Court could take coginizance against the persons so discharged. Similar view was expressed by Hon'ble Madras High Court in Chelliah vs. Yesuvadial, 1999 1 FJCC 576. Undoubtedly, the revision petition was accepted on the premise of non-maintainability of the second complaint but after hearing the counsel for the parties, this Court deems it appropriate to dismiss the present petition inter-alia on the following grounds:- 1. The occurrence had concededly taken place on 27.01.1998 and the first complaint was presented before the learned Area Judicial Magistrate on 11.06.2001 i.e after a delay of 02 years and 05 months without any plausible explanation. 2. The first complaint was dismissed for want of prosecution due to non-appearance of the complainant on 07.11.2001 and thereafter, the second complaint was filed on 24.03.20003 after a delay of 01 year and 04 months.
(3.) The second complaint was filed after 05 years and 02 months of the occurrence.;