BAGHMAL JHADULAL JAIN Vs. BHAIYALAL UMRAO SINGH RAGHUVANSHI

JUDGEMENT

(1.) THIS revision-petition is directed against the order dated 9-6-1997 of First Additional Sessions Judge, Chhindwara in Criminal Revision No. 35/93 whereby the learned Additional Sessions Judge set aside the Order dated 10-3-1993 passed in Criminal Case No. 475/91 by the Court of Judicial Magistrate First Class Chhindwara dropping the complaint proceedings against the accused (present petitioners ).

(2.) THE relevant facts in brief are that the present respondents filed a complaint against the 8 petitioners who are officers and employees of Central Co-operative Bank, Chhindwara, alleging the offences punishable under Sections 454, 380, 147, 148 read with 149, Indian Penal Code.

(3.) INITIALLY, this complainant had filed a complaint against these respondents (present petitioners) for the same offences as far back as 1st December, 1986 on the allegations that on 17-11-1981, the complainant had gone to Chhindwara from his village Seonipanmoti. His wife was at home. These accused along with 13 to 15 other persons came to his house. They came in Jeeps with a tractor. They entered the house and broke open the room in which gram, Urad, Makka and paddy were stored and in a locked Almirah, there were ornaments. Respondent No. 1 ordered for breaking open the lock. The accused persons took away the above mentioned grains and ornaments. Details of grains were given, as worth Rs. 14,150/- and details of ornaments as worth Rs. 27,500/ -. The allegations were that the accused persons committed this theft and took away the goods of the complainant in spite of objection of his wife and of his son. The complainant filed a report with the police on the same day but no action was taken by the police. The complainant filed a complaint on 13-1-1982 against these accused before the Area Magistrate. The Magistrate took cognizance vide order dated 5-9-1983 for offences punishable under Sections 454 and 380, Indian Penal Code against these accused and registered it as complaint Case No. 379/83. The respondents in the complaint case (i. e. the petitioners herein) were summoned to stand trial. They appeared in the Court and the matter was pending for pre-charge evidence on 29-11-1986. On that date, the complainant and his witnesses could not appear before the Magistrate and the complaint was dismissed, and these accused were discharged. It was asserted that the complainant suddenly became ill on 28-11-1986 and he could not come to the Court nor could bring with him his witnesses nor he could inform his counsel to appear in Court. So he filed a fresh complaint on 1-12-1986. This fresh complaint has been registered as Case No. 475/91. The respondents in the complaint were summoned and after adducing evidence, at the stage of the fresh complaint, the respondents filed an objection that the fresh complaint was barred under the provisions of Sections 245 (2), 247 and 258 of the Code of Criminal Procedure and, in any case, it was an abuse of the process of the court and so the fresh complaint should be dismissed and proceedings be dropped. This plea was accepted by the learned Magistrate who dropped the proceedings vide order dated 10-3-1993 and again discharged the accused persons. The complainant approached the Sessions Court in revision-petition. The First Additional Sessions Judge vide impugned order dated 9-6-1997 set aside that order holding that the offences were cognizable and non- compoundable and so a fresh complaint about them can be filed even after the discharge of the accused persons in the earlier complaint which was in the absence of the evidence and because the witnesses could not appear and the fact that the Magistrate could not review his own order of dismissal, did not bar filing of same complaint on the fresh ground and the Magistrate can take cognizance. The cognizance had already been taken. The complaint could not be dismissed because of discharge of the accused in the prior complaint.