HANSABAI SAYAJI PAYAGUDE Vs. ANANDA GANUJI PAYAGUDE

JUDGEMENT

(1.) THE facts of this case briefly are that on September 8, 1946, the complainant Hansabai filed a criminal complaint against the accused under Sections 447 and 504, Indian Penal Code, and Section 24 of the Cattle Trespass Act, before the First Class Magistrate, Haveli. This was dismissed as she was absent on the date of the hearing. THEreafter she brought a fresh complaint in the same Court. After recording the evidence adduced by her, the Magistrate discharged the accused on March 5, 1947. A fortnight later, on March 18, 1947, the complainant filed a third complaint on the same facts against the accused. This was transferred to the Third Class Magistrate, Haveli. THE Magistrate decided to inquire into the case again and issued summonses to the accused. After the evidence, which the complainant produced, had been taken, the accused applied to the Magistrate that no charge should be framed, as he had previously been discharged on the same evidence. THE Magistrate did not accept this argument and on November 15, 1947, framed a charge against the accused and passed an order that the case should proceed. On December 9, 1947, the accused made a revision application to the Sessions Judge, Poona, in which he requested that the order passed by the Magistrate on November 15, 1947, should be set aside. THE Sessions Judge has made a reference to this Court, recommending that the proceedings pending before the Magistrate should be quashed.

(2.) IT is now 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. (See In re Mahadev Laxman (1924) 27 Bom. L. R. 352, Emperor v. Amanat Kadar (1928) 31 Bom. L. R. 146 and Alimahomed v. Kasturchand (1938) 41 Bom. L. R.) The Third Class Magistrate, Haveli, was, therefore, competent to entertain the third complaint brought by the complainant against the accused. Section 203, Criminal Procedure Code, provides that the Magistrate before whom a complaint is made may dismiss the complaint, if after considering the statement of the complainant and the result of the investigation or inquiry under Section 202, if any, there is, in his judgment, no sufficient ground for proceeding. In coming to a decision whether there is sufficient ground for proceeding with the complaint, the Magistrate must take into consideration previous proceedings, if any. 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 same 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 the face of the record or manifest miscarriage of justice. IT cannot be said to be in the interests 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 co-ordinate 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 Section 253 (7), is to move the superior Court to set it aside and order further enquiry in the case under Section 436, Criminal Procedure Case. 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.

(3.) THE Sind Judicial Commissioner's Court and the Lahore High Court have taken the same view. In Parsram Bhagwandas v. Emperor (1929) 30 Cr. L. J. 444 and Emperor v. Alias [1929] A. I. R. Sind 242, the Sind Judicial Commissioner's Court held that it is a well-recognised and salutary principle of law that a fresh complaint in respect of the same offence should not be entertained when it is based on same facts and same evidence as were available at the previous trial. In Mohammad Din v. Mahtab Din (1932) 33 Cr. L. J. 493 and Allah Ditta v. Karan Bakhsh (1930) I. L. R. 12 Lah. 9 the Lahore High Court has held that a second complaint should be entertained only in exceptional circumstances, for example where the previous order was passed on incomplete record or was manifestly perverse or foolish. In Allah Ditta v. Karam Bakhsh it was urged that in the second case brought against the accused, the complainant was a different person. Referring to this argument, Mr. Justice Bhide at p. 12 stated : But when it is admitted that the facts are identical and there are no good grounds for reconsideration of the case, the mere fact that the complainant is not the same person would, in my opinion, make no difference. If this were not so, it would be easy enough for a complainant to harass an accused person with complaints on the same facts by his friends and relations as often as he likes, It is, in my opinion, nothing short of an abuse of the process of the Court to entertain a fresh complaint in such circumstances.