AVADH NARAIN Vs. KRIPA SHANKAR MISHRA

JUDGEMENT

(1.) This revision under Sections 397/401 of the Code of Criminal Procedure 1973 (For short the Code) is directed against the order dated 23.6.81 passed by Special Judicial Magistrate in Criminal Case No. 96 of 1981, Kripa Shankar Mishra v. Awadh Narain and others under Sections 323/504/506/448 of the Indian Penal Code.

(2.) It appears that a complaint was filed under Sections 323/504/506/447 I.P.C. by the opposite party against the applicants on 24/6/1980 and that complaint was dismissed on the same day i.e. on 24/6/1980 in absence of the complainant. The complainant filed another complaint stating these facts and statements under Section 202 of the Code were recorded. The process was also ordered to be issued under Section 203 of the Code. On 19-2-81 the complainant along with accused was present and that was the date fixed for adducing evidence on behalf of the complainant but the counsel for the complainant did not appear and the complainant did not make any application for adjournment. The Magistrate closed the evidence as the complainant did not adduce any evidence and passed an order of discharge under Section 245(2) of the Code. Again a 3rd complaint was filed on 19-2-81 stating all the facts including dismissal of the complaint and purported order of discharge under section 245(2) of the Code. An objection appears to have been raised on behalf of the opposite parties (present applicants) that the 3rd complaint was not maintainable, but that objection was ruled out by the impugned order against which present revision is directed.

(3.) Learned counsel for the applicants urged that on the same cause of action or on the same facts, 3rd complaint was not maintainable as after dismissal of the complaint under Section 203 or purported order of discharge under Section 245(2) there was no fresh fact nor was any special circumstance. Reliance was placed on Murlidhar Kunar v. Bhagaban Kunar, Ram Kissen Shaw and another v. Smt. Chandrawati Shaw and another, and Rajendra Prasad Singh v. State. Learned counsel for the opposite party No. 1 and Sri Harihar Prasad Tripathi, learned counsel for the State on the other hand urged that there was no bar in entertaining second or third complaint. In case the accused had already been discharged or even if the complaint was dismissed under Section 203 of the Code and the order for issuing process was not passed as there was no sufficient ground to proceed in that event also fresh complaint can be filed, under special or exceptional circumstances. The reliance was placed on Bindeshwari Prasad Singh v. Kali Singh.