MADAN MOHAN TRIPATHY Vs. RAMA CHANDRA BEHERA

JUDGEMENT

(1.) THE short question that arises for consideration in this revision is whether a second complaint petition is permissible to be entertained after an earlier complaint for the same occurrence was dismissed and the .accused acquitted under Section 256 (i), Code of Criminal Procedure.

(2.) THE opposite party -complainant, who has not appeared in spite of notice, had flied an earlier complaint under Sections 447, 504, 506, 307 and 352, L P. C. against the Petitioner, but cognizance was taken under Sections 504 and 506, I..P.C.. The complaint was dismissed due to his absence and the Petitioner acquitted under Section 256 (1), Code of Criminal Procedure on 1 -11 -1983 in T. C. No. 190 of 1983 (1. C. C. No. 21 of 1983) in the Court of the Sub -Divisional Judicial Magistrate, Udala. Such dismissal of the complaint was never challenged either in appeals or in revision. Thereafter, a second complaint was filed for the identical occurrence mentioning therein the fact of the dismissal of the earlier complaint. The learned Magistrate took cognizance of such complaint under Sections 447 and 506, 1. P. C.. The accused, Petitioner in this revision filed an objection before the Magistrate challenging the maintainability of the fresh complaint in view of his acquittal under Section 256 (1), Code of Criminal Procedure in the earlier case. The learned Magistrate rejected the petition being of the view that since cognisance had already been taken, he had no scope to interfere with the matter.

(3.) THE submission that an acquittal under Section 256 (1) Code of Criminal Procedure is not covered under Section 300 (1) Code of Criminal Procedure appears to be based upon the words ''has once been tried '' in that section, it being usually contended that when an order is passed under Section 256 (1) acquitting the accused, it could not be said of him having been tried and acquitted. The contention is not acceptable since it is evident that the word ''tried '' would include all stages after taking of cognizance by the Court and the date fixed for appearance of the accused pursuant to the summons. The order may be passed even without any evidence being recorded or after all or some evidence being recorded. But in all such cases the accused would be deemed to have been tried and acquitted.