MURALIDHAR KUNAR Vs. BHAGABAN KUNAR

JUDGEMENT

(1.) THE opposite party lodged an information before the police alleging that the petitioner and 11 others committed a dacoity in his house on 11 -6 -64. After investigation the police submitted final report saying that the case is true, but the evidence insufficient. Thereafter the opposite party filed a complaint which was registered as case No. 166/64 and sent for enquiry under Section 202, Criminal Procedure Code to Sri D. Mohanty, Magistrate 1st class, Anandapur. In course of the said enquiry, the wife of the opposite party was examined. But a petition was filed by the complainant saying that the case had been settled amicably and that he does not want to proceed with the case. The Magistrate thereafter recommended to drop the proceeding as there was no sufficient evidence to make out a prima facie case against the persons complained. On receipt of the enquiry report, the Sub -Divisional Magistrate dismissed the complaint on 26.10 -64, under Section 203, Criminal Procedure Code

(2.) THE main contention of the learned counsel for the petitioner is that in view of the dismissal of the previous complaint, a fresh complaint on the very same facts is not entertainable except on exceptional circumstances which have not been made out in this case and as such the proceedings should be quashed. The position of law is well settled that the dismissal of a complaint under Section 203, Criminal Procedure Code cannot be equated with an order of acquittal so that a fresh complaint will be barred under Section 403, Criminal Procedure Code There is nothing in law against entertainment of a second complaint on the same facts on which an accused had already been discharged. The legal position is equally well settled that although a previous order dismissing the complaint under Section 203 is no bar for the institution of a fresh complaint, still a fresh complaint in respect of the same offence should not be entertained unless there are exceptional circumstances.

(3.) THE same view has also been expressed by the Patna High Court in a case reported in AIR 1949 Patna 256, Ram Narain v. Panchand Jain. It was held that although a previous order of dismissal of a complaint under Section 203 is no bar to the institution of a fresh complaint against the same accused, still a new complaint in respect of the same offence should not be entertained unless there are exceptional circumstances, such as where new facts which could not with reasonable diligence have been brought forward in the previous proceedings are adduced or there has been some manifest error in the previous proceeding or the previous order was passed on an incomplete record or misunderstanding of the nature of the complaint. The Lahore High Court in the case reported in AIR 1930 Lah 879, Allahditta v. Karan Bux and the Madras High Court in the case reported in AIR 1918 Madras 484 (FB), Doraisami v. Subramania, also took the same view.