Singh & Ors Vs. Ranjit Kaur  Insc 42 (30 January 2001)
K.T.Thomas Thomas, J.
Special Leave Petition (crl.) 4103 of 1999
granted. The sole question is whether a complaint, once dismissed by a
magistrate for default, can be refiled? Appellant, who is alleged to have
married twice, and that too with the sibling of the first spouse, is now
aggrieved as the High Court held that there is nothing illegal in filing a second
complaint on the fact situation.
Kaur, the undeterred complainant, felt beguiled by the appellant, whom she
described as her lawful husband, and her younger sister Rajwant Kaur connived
with him for performing a marriage between them clandestinely during the time
when Ranjit Kaur was enceinte. After the child was born to her she filed the
first complaint against Jatinder Singh the appellant. In the complaint she
arrayed the appellant as the first accused indicting him of the offence of
bigamy (Section 494 IPC) and four others including her sister Rajwant Kaur were
arraigned for abetting the said offence (Section 109 IPC).
magistrate before whom she filed a complaint kept on waiting for holding an
inquiry under Section 202 of the Code of Criminal Procedure (for short the
Code). It is a pity that a complaint filed by the respondent Ranjit Kaur before
the Judicial Magistrate of First Class, Batala (Punjab) remained in the incubation stage for nearly one year
during which she had to appear in the court on many occasions without the
accused being called to appear. Her statement was recorded on 12.3.1992 and the
statements of two of her witnesses were recorded many months thereafter.
15.12.1993, the magistrate dismissed the complaint merely because she was not
present inside the court when the case was called. Instead of taking up the
matter to higher courts Ranjit Kaur has chosen to file another complaint dated
15.2.1993 before the same magistrate containing the same allegations as stated
in the first complaint. However, the magistrate this time took cognizance of
the offence and issued process to the accused persons mentioned in the
appellant first filed a revision petition before the Sessions Court after
getting summons from the magistrate, but when he felt its maintainability
doubtful he withdrew the revision petition and moved the magistrate for
dismissal of the complaint on the sole ground that another complaint,
containing the same allegations, was dismissed earlier. The magistrate
overruled his objections and proposed to proceed with the case, but the
appellant succeeded in stalling the proceedings as the Sessions Judge
entertained a revision petition once again filed by the appellant.
revision was allowed by the Sessions Judge and there was a temporary reprieve
for the appellant from court proceedings. But the complainant, with alacrity,
moved the High Court by a revision petition in challenge of the order passed by
the Sessions Judge. A learned Single Judge of the High Court of Punjab and Haryana,
by a very short order, revived the magistrates order and upset the order passed
by the Sessions Judge. It is the said brief order passed by the Single Judge
which the appellant has assailed now by special leave.
is what the High Court has stated in the impugned order: The earlier complaint
was dismissed on 2.12.1992 but not on merits. It was dismissed in default. In
those circumstances, the second complaint was maintainable and rightly held by
the Magistrate that special reasons have been advanced in the second complaint.
counsel for the appellants raised two contentions before us. The first is,
dismissal of the first complaint, whether for default or on merits, has the
same effect of exonerating the accused of the allegations and so long as that
order remains, a second complaint is not maintainable in law. The other
contention is that the complainant in her second complaint suppressed the fact
that her first complaint was dismissed and hence the second complaint should
have been dismissed for want of bona fides.
is no provision in the Code or in any other statute which debars a complainant
from preferring a second complaint on the same allegations if the first
complaint did not result in a conviction or acquittal or even discharge.
300 of the Code, which debars a second trial, has taken care to explain that
the dismissal of a complaint or the discharge of an accused is not an acquittal
for the purpose of this Section. However, when a magistrate conducts an inquiry
under Section 202 of the Code and dismisses the complaint on merits, a second
complaint on the same facts cannot be made unless there are very exceptional
circumstances. Even so, a second complaint is permissible depending upon how
the complaint happened to be dismissed at the first instance.
Section 202 of the Code a magistrate is conducting an inquiry before issuing
the process to the accused, for the purpose of determining whether there is
sufficient ground for proceeding. Section 203 of the Code empowers him to
dismiss a complaint after holding such inquiry if he is of opinion that there
is no sufficient ground for proceeding. In that event he has to record the
reasons as to why he held that there is no sufficient ground for proceeding, though
he need not write an elaborate order.
203 of the Code reads thus: 203. Dismissal of complaint.- If, after considering
the statements on oath (if any) of the complainant and of the witnesses and the
result of the inquiry or investigation (if any) under section 202, the
Magistrate is of opinion that there is no sufficient ground for proceeding, he
shall dismiss the complaint, and in every such case he shall briefly record his
reasons for so doing.
Judge Bench of this Court said in Chandra Deo Singh vs. Prokash Chandra Bose
(AIR 1963 SC 1430) as to the effect of not recording reasons while dismissing a
complaint under Section 203 of the Code. This is what the learned Judges said
on that score: The complainant is entitled to know why his complaint has been
dismissed with a view to consider an approach to a revisional court. Being kept
in ignorance of the reasons clearly prejudices his right to move the revisional
court and where he takes a matter to the revisional court renders his task
before that court difficult.
dismissal of the complaint was not on merit but on default of the complainant
to be present there is no bar in the complainant moving the magistrate again
with a second complaint on the same facts. But if the dismissal of the
complaint under Section 203 of the Code was on merits the position could be
different. There appeared a difference of opinion earlier as to whether a
second complaint could have been filed when the dismissal was under Section
203. The controversy was settled by this Court in Pramatha Nath Talukdar vs. Saroj
Ranjan Sarkar (AIR 1962 SC 876). A majority of Judges of the three Judge Bench
held thus: An order of dismissal under S.203, Criminal Procedure Code, is,
however, no bar to the entertainment of a second complaint on the same facts
but it will be entertained only in exceptional circumstances, e.g., where the
previous order was passed on an incomplete record or on a misunderstanding of
the nature of the complaint or it was manifestly absurd, unjust or foolish or
where new facts which could not, with reasonable diligence, have been brought
on the record in the previous proceedings, have been adduced. It cannot be said
to be in the interest of justice that after a decision has been given against
the complainant upon a full consideration of his case, he or any other person
should be given another opportunity to have his complaint enquired into.
J. (as he then was) while dissenting from the said majority view had taken the
stand that right of a complainant to file a second complaint would not be
inhibited even by such considerations. But at any rate the majority view is
that the second complaint would be maintainable if the dismissal of the first
complaint was not on merits.
not find much force in the next contention that the complainant lacked bona
fides as he suppressed the fact of dismissal of the first complaint. We cannot
overlook the fact that the second complaint was filed before the same
magistrate who dismissed the first complaint, and that too was done within a
short interval. Even otherwise, nothing would turn out from the mere fact that
the complaint did not contain an averment that the first complaint was
dismissed for default.
magistrate did not consider the materials on record when he dismissed the first
complaint, instead the said course was adopted by him only as a consequence of
the default of complainant presenting herself when the case was called, there
is no reason to shut the door before her once and for all. The High Court has
correctly interfered with the order of the Sessions Court by restoring the
complaint and the proceedings initiated thereon. We therefore dismiss this