HAKIM ABDUL RAHMAN Vs. STATE

JUDGEMENT

(1.) .This is a petition to revise the Order of the Sessions Judge, Adilabad, in Crl.R.P.No.10 of 1960 on his file. The petitioner is Hakim Abdul Rahman. He filed a private complaint before the Munsif-Magistrate, Boath, against Suryaprakash, a sub-Inspector of Police, complaining that the latter had insulted, abused and beaten him when travelling in a bus on 6th March, 1960 and had thereby committed offences punishable under sections 323 and 504, Indian Penal Code. The learned Munsif-Magistrate took it on file on 12th March, 1960, as C.C. No. 35 of 1960 and posted it for hearing on 30th March, 1960. On that day, the complainant did not turn up. The learned Magistrate dismissed the complaint for default of the appearance of the petitioner and discharged the accused under section 259, Criminal Procedure Code, by his order, dated 3Oth March, 1960. On 8th April, 1960, the complainant filed another complaint in which he gave an explanation as to why he had not been present on 30th March, 1960, namely, due to a misunderstanding that the case was posted to 15th April, 1960 and also that he was seriously ill due to pneumonia on 30th March, 1960 and so he was not able to attend the Court on the day of hearing. He also produced a medical certificate. The learned Munsif-Magistrate dismissed the complaint under section 203, Criminal Procedure Code, saying that he did not see any reason to entertain the complaint once again. The complainant filed Crl. R P. No. 10 of 1960, before the Sessions Judge, Adilabad. The latter dismissed it by his order, dated 6th August, 1960. Thereupon, the complainant has filed this petition.

(2.) The learned Sessions Judge observed in his order as follows :- "I could have well appreciated the action of the petitioner had he filed a fresh complaint within a day or two of the dismissal of the previous complaint. The previous complaint was dismissed on 15th March, 1960 and the present complaint was filed on 8th April, 1960. Thus, there was a delay of nearly three weeks. I am therefore not satisfied with the bouna fides of the revision petitioner.

(3.) His complaint was, therefore, rightly dismissed by the lower Court." Shri Srivastava, the learned Advocate for the petitioner, contends that the original complaint in C.C. No. 35 of 1960 was dismissed actually on 3Oth March, 1960, that the fresh complaint was filed on 8th April, 1960, only after a delay of about nine days and that there was not a delay of three weeks, as pointed out by the learned Sessions Judge. This contention is tenable. There is only a delay of nine days in filing the second complaint, counting from the date of the order of discharge. It cannot be said that the complaint was rightly dismissed by the learned Magistrate. There is no dispute before me about the fact that the second complaint could be entertained in law. For, section 403, Criminal Procedure Code, which bars fresh proceedings in respect of the same offence, only bars such fresh proceedings in cases in which there was a full trial and the accused was convicted or acquitted. The Explanation to the section expressly lays down that the dismissal of a complaint or the stopping of proceedings under section 249, Criminal Procedure Code, or the discharge of the accused does not amount to an acquittal for the purpose of that section. It has been held in S. M. Basu v. S. R. Sarkar, A.I.R. 1961 Cal. 461, that the dismissal of an earlier complaint was no legal bar to the entertainment of a fresh complaint on the same facts by the same complainant even though the order of dismissal or discharge was not set aside (in revision) by a competent authority. In this case, the accused was discharged under section 259, Criminal Procedure Code, even before the framing of a charge. Hence, there is no bar for filing of a second complaint on the same facts by the same complainant. I, therefore, set aside the order of both the lower Courts and remand the case to the trial Court for being disposed of in accordance with law. The revision is accordingly allowed. Revision allowed ; Case remanded.