D.S.TEWATIA,J - (1.) THIS order would dispose of Criminal Misc. No. 2226-M of 1983 and Criminal Misc. No. 363-M of 1986, as a common question of law is involved in both these petitions. For facts, reference is made to the contents of Cr.Misc.No. 2226-M of 1983.
(2.) SHAM Sunder Sharma, respondent No. 2, filed a complaint under sections 499 and 500 I.P.C. in the Court of Judicial Magistrate First Class, Chandigarh, against Sarvshri M.M.S.Bedi, Rajinder Singh Raj and M.S.Malhotra. The accused were summoned by order dated 14th December, 1982, for 5th February, 1983. On that date, two of the summoned accused, namely, Rajinder Singh Raj and MS.Malhotra were present.Summons issued to Shri M.M.S.Bedi remained unexecuted. On that date, however the complainant did not appear. The Magistrate, therefore, in view of the provisions of section 256, Code of Criminal Procedure, 1973, hereinafter referred to as to Code, dismissed the complaint in default of prosecution and passed an order of discharge against the summoned accused. The complainant filed a second against the said accused on 9th February, 1983, for the same offence and on similar facts. The Magistrate summoned the accused on 10th February, 1983. The accused moved an application for discharging them in the second complaint. That application was dismissal by the Magistrate by his order dated 5th April, 1983 annexure P.5. One of the said accused, namely, Shri M.M.S.Bedi has impugned his prosecution on the second complainant on the ground that in view of the provisions of section 300 of the Code second complaint for the same offence and on the same facts is not competent and the court cannot take cognizance of such a complaint.
(3.) IN my opinion, this petition deserves to be allowed for reasons hereinafter detailed.;