- (1.) THIS is a revision petition' by Tej Singh from an order of the First Class Magistrate No. 2, Jodhpur, dated the 6th of December, 1957, which was confirmed in revision by the Sessions Judge of Jodhpur on the 22nd of July, 1958.
(2.) BIRDHA filed a complaint in the court of the Magistrate First Class No. 2, Jodhpur on the 17th of July, 1956 under secs. 147,427 and 447 I. P. C. with the allegations that the accused persons in pursuance of their common object committed trespass on the field of the complainant named Dhaniwala in village Sani and ploughed it and broke two tankas belonging to the complainant, thereby causing a loss of the value of Rs. 300/- to him. The Magistrate recorded the statement of the complainant and four other witnesses and issued process against the accused Tej Singh and others on the 4th of August, 1956 in respect of an offence under sec. 447 only. A number of dates were fixed and finally on the 21st of August, 1957, the case was dismissed under sec. 247 Cr. P. C. on account of the complaint remaining absent. The complainant BIRDHA then filed a second complaint about four months thereafter on the 6th of December, 1957 in the court of the Magistrate, who succeeded in office to the Magistrate who dismissed the complaint and order of acquittal u/s. 447. The learned Magistrate examined the complainant and ordered issue of process for an offence under sec. 427 only. The accused then went up in revision against the order of the Magistrate to the court of the Sessions Judge, but was not successful, his revision having been dismissed as noted above. The learned Sessions Judge has held that sec. 403 sub-sec. (2) was no bar for taking proceedings for an offence under sec. 427 I. P. C. in the case for the order of acquittal was passed for an offence under sec. 427 only. The decisions in Purnanda Das Gupta vs. Emperor (1) and Kristapado Bhakta. vs. The State (2) were relied upon. The learned counsel for the accused has urged that though sec. 403 sub-sec. (2) is no bar the taking of proceedings against the accused for an offence under sec. 427 I. P. C. yet it would amount to an abuse of the process of the court and miscarriage of justice if the complainant is permitted to proceed against the accused piecemeal. It is suggested that even now when the complainant would fail in establishing an offence under sec. 427 I. P. C, he would then choose to proceed again by way of a separate complaint for an offence under sec. 147 which has been kept in reserve by the magistrate for process was only issued under sec. 427 I. P. C It is contended that a magistrate should refuse to register a case under sec. 203 Cr. P. C. , under the circumstances of the present case for the reason that the complainant did not care to question the order of the Magistrate discharging accused persons under sec. 203 on the 4th of August, 1956 and when the complainant remained silent for a considerable length of time after the order of dismissal of the case under sec. 247 Cr. P. C. was recorded before the filing of a fresh complaint. It is urged that the learned Sessions Judge failed to appreciate the point pressed by the accused before him regarding inappropriateness of taking cognizance by the magistrate of the second complaint when the accused persons had been discharged under sec. 203 more than 12months before that date and when no action was taken by the complainant in that behalf for a considerable length of time. The learned counsel for the petitioner has cited the decisions in Hansabai Sayaji Payagude vs. Ananda Ganuji Payagude (3), Gurcharan vs. State (4), Narsingha Rout vs. Rameshwar Mohanpatra (5), Kumariah Naicker vs. Chinna Naicker (6), Allah Ditta vs. Karam Bakhsh (7), U. Shwe Kyaw vs. Ma Sein Bwin (8 ). Biso Ram vs. Emperor (9) and Emperor vs. Alias (10 ). The counsel for the complainant has replied by saying that the decisions referred to by the counsel for the accused be distinguished for the reason that in all those cases, there was an order on merits of the case regarding the discharge of the accused, whereas in the present case, there is no order by the magistrate on the merits and there is only an order of acquittal for the reason that the complainant remained absent on the date fixed for the appearance. The learned counsel has referred to the decisions in the cases of In re Wasudeo Narayan Phadnis (11) and Mt. Harbai vs. Raya Premji (12) in order to show that the second complaint was not barred by sec. 403 and that it was competent for the magistrate to take cognizance of the second complaint under the circumstances of the present case. The learned Sessions Judge has dealt with the point whether sec. 403 sub-sec. (2) is a bar for taking cognizance of the case under sec. 427 when the accused were acquitted of an offence under sec. 447 I. P. C. The learned Judge came to the conclusion that the magistrate was within his jurisdiction to take cognizance of the second complaint in spite of the fact that the first complaint had resulted in the order of acquittal under sec. 447. The point that has been pressed by the learned counsel for the accused does not relate to the bar under sec. 403 sub-sec. (3 ). The learned counsel frankly concedes that sec. 403 sub-sec. (2) is no bar to the Magistrate taking cognizance of the second complaint when the order of acquittal that was passed related to an offence under sec. 447 and when the second complaint related to the offences under sec. 147 and 427. He has, however, urged that the learned Sess. Judge missed the point that was canvassed by him before him He has urged that even though sec. 403 sub-sec. (2) may not be a bar, it would be inappropriate and it would amount to miscarriage of justice and the abuse of the process of the court if the accused persons are allowed to be harassed in proceedings one after the other without there being any fresh reason for registering successive complaints. It is contended that the facts on which the fresh complaint was lodged were exactly the same as were stated in the first complaint and the evidence that it desired to be produced now is also exactly the same as was mentioned in the first application and for this reason, the proceedings on the second complaint are stated to be uncalled for. It is hardly necessary to discuss the provisions of sec. 403 sub-sec. (2) Cr. P. C. in this case. It is conceded by the learned counsel of the accused that the provision of sec. 403 (2) is no bar to the taking cognizance of the second complaint under the circu-mstances of the case. What deserves to be considered is the point whether it was appropriate under the circumstances of this case for the magistrate to proceed with the second complaint when on the first complaint the accused persons were discharged under sec. 203 so far as offences under sec. 147 and 427 were concerned and no action was taken by the complainant against that order of discharge till the filing of the second complaint after a considerable delay. The first complaint was dismissed and an order of acquittal was recorded on the 21st of August, 1957 and the second complaint was filed on the 6th of December, 1957 without any explanation for the delay. In this connection, the learned counsel of the opposite side has referred to two cases. In re Wasudeo Narayan Phadnis (11), the learned Judges discussed whether an order of discharge under sec. 259 could be considered to be a judgment for the purposes of sec. 403 Cr. P. C. and they held that an order of discharge under sec. 259 could not be regarded to be a judgment. Consequently, the learned Judges expressed the view that the order of dismissal under sec. 259 could be reviewed by the magistrate and the proceedings could be revived from the stage at which they were dropped. In discussing the point what was judgment it was observed that the orders which are passed after consideration of the evidence should be distinguished from the orders that are passed without reference to the merits of the case and on account of this distinction an order of discharge under sec. 259 was not considered to be a judgment. It may be noted that no assistance can be drawn from the judgment in In re Wasudeo Narayan Phadnis's (11) case for the points discussed in that case are not at issue in this case. In the present case, on order of dismissal under sec. 259 was never passed and the comments regarding an order under sec. 259 cannot be of any help for decision of the point of appropriateness raised by the learned counsel of the accused. The following observations from the judgment in Mst. Harbai's case (12) have been cited by the learned counsel of the complainant : - "where a Magistrate dismisses a complaint for default under sec. 203 or discharges an accused under sec. 259, it is competent for that Magistrate or his successor in office or any other Magistrate having coordinate jurisdiction to entertain a second complaint on the same facts although the order of dismissal or discharge may not have been set aside by a higher Court. " It may be noted that the competence of the Magistrate to take cognizance of the second complaint has not been questioned by the learned counsel of the accused and the aforesaid observations from the decision in Mst. Harbai's case (12) cannot, therefore, throw any light on the point raised by the petitioner in this case. The learned Judges in Harbai's case further observed as follows, which rather support the point taken up by the counsel of the petitioners : - The decisions which weighed with the learned Sessions Judge namely Purananda Das Gupta vs. Emperor (1) and Kristapada Bhakta vs. The State (2) cannot also be of much help in the present case as those decisions turn upon the question of bar to sec. 403 sub-sec. (2) Cr. P. C. and they do not deal with the point of appropriateness that has been raised in this revision. Even though the Magistrate is competent to take cognizance of a second complaint in a case where a previous complaint on the same facts had been dismissed under sec. 203 or where an order of discharge had been recorded by the same Magistrate or by his predecessor-in-office, yet it is incumbent upon him to exercise his jurisdiction under sec. 203 Cr. P. C. judicially. Sec. 203 provides that the Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint if, after considering the statement on oath, if any, of the complainant and the result of the investigation or inquiry if any under sec. 202, there is in his judgment no sufficient ground for proceeding. Whether there is sufficient ground for proceeding is a point to be considered by the Magistrate in each case on the basis of the circumstances of the case. In this connection, Chainani J. in Hansabai Sayaji Payaguae's case (3) aptly observed as follows: - "it's new well settled that the discharge of an accused person does not operate as a bar to the institution of fresh criminal proceedings against him for the same offence, and that it is competent for a Magistrate to entertain another complaint on the same facts and to enquire again into the case against the accused. . . . . . . . . . . . Where an accused person has been discharged after consideration of all the evidence produced by the complainant, and a fresh prosecution is instituted thereafter on the came facts, the Magistrate cannot be said to have sufficient ground for proceeding with the complaint unless he is satisfied that some additional evidence is forthcoming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on fact of the record or manifest miscarriage of justice. It cannot be said to be in the interest of justice that a party who has obtained a decision from a Court after a full consideration of his case should be given an opportunity to seek from the same Court or another Court of coordinate jurisdiction a different decision on the same facts and on the same evidence. The proper remedy for the complainant, who is dissatisfied with an order of discharge, passed under sec. 253 (1); is to move the superior court to set it aside and other further enquiry in the case under sec. 436, Criminal Procedure Code. For, otherwise it would be open to a complainant to file a series of complaints on the same facts a new complaint being brought as soon as or shortly after the accused has been discharged in the previous case, and thus continue indefinitely the harassment of the accused. " I am in respectful agreement with the observations of Chainani J. which have been reproduced above and which support the view I have taken in this case. In the instant case, the second complaint has been filed on the same facts as were disclosed in the first complaint and the evidence also is exactly the same as was noted in the first complaint. There is no new material or evidence to justify a second complaint. The evidence of five witnesses produced by the complaint was considered by the Magistrate, First Class No. 2, Jodhpur when he made his order of issue of process under sec. 447 on the 4th of August, 1956. The complainant did not challenge the correctness of the order of the Magistrate of the 4th August, 1956 till he filed the second complaint. Morever, the second complaint was filed on the 6th December, 1957 when the first complaint was dismissed on the 21st of August, 1957. No reasons were given by the complainant for taking no action during the period after the first complaint was dismissed and upto the time the second complaint was instituted. Thus, there can be no grounds for the Magistrate to proceed with the second complaint under the circumstances of the case. This, however, should not be taken to mean that the Magistrate has no jurisdiction to take cognizance of a second Complaint. Ordinarily a Magistrate should not exercise his jurisdiction under sec. 203 in favour of taking action against the accused without there being reasonable grounds for proceeding with the case and where a complaint had already been dismissed on the same facts and on the same evidence as are pleaded in a second complaint unless there be good explanation for the complainant to claim the indulgence of the court in his favour a second time, it would be inappropriate for the Magistrate to register a series of cases against the accused one after the other on the same facts and on the same evidence without special reasons. The learned counsel of the petitioner has referred to a number of decisions, but it is hardly necessary to examine them, as they are all at par with decision in Hansabai Sayaji Payazude's case (3) It may be noted that though the Magistrate in his order of the 21st of August, 1957 failed to specifically refer to offences under secs. 147 and 427, no other conclusion can be reached by referring to that order except that the Magistrate did not think it proved to his satisfaction that cases under secs. 147 and 427 were made out against the accused to justify issue of process under those sections. It is obvious that the Magistrate did discharge the accused in respect of the offences under secs. 147 and 427 when he refused to issue process for those offences on the 21st of August, 1957. There being no reasonable grounds for the second complaint which is on the same facts and on the same evidence, it is undesirable that it should be proceeded with, and the order of the Magistrate issuing process thereon cannot be considered to be proper.
(3.) THE revision petition is allowed and the order of the Magistrate regarding issue of process dated the 6th of December, 1957 is set aside. .;