SMT. RIBIKA JANI Vs. COLOMBUS RATH AND ORS.

JUDGEMENT

(1.) THIS Revision 'by 'the complainant is against the order of the learned Special Judge -cum -Sessions Judge, Koraput refusing to entertain the second complaint petition, the first complaint petition having, been dismissed for default.

(2.) THE short point involved in the present case is as to whether a second complaint on the selfsame allegation is entertainable /maintainable, the first complaint petition having been dismissed for default in taking any steps by the complainant on the date fixed. It appears that by order dated 9.10 -1996 in T.R. No. 130 of 1995 the learned Special Judge dismissed the complaint petition the complaint having not take any steps, Undisputedly the complainant (petitioner) filed the second complaint before the learned Special Judge which was registered on T.R. No. 177 of 1997 on 29 -10 -1997, basing on the self -same allegation of the occurrence dated 23 -10 -1995 'on which the earlier complaint petition was filed on 1 -11 -1995. The question of maintainability was taken up by the learned Special Judge and by order dated 29 -10 -1997, the complaint petition has been dismissed on the ground that the earlier complaint petition stood dismissed for not taking of -the steps and in absence of the complainant and the delay in filing has not been explained. The learner Special Judge found the assertion of the complainant that she did not know about the dismissal of the case not believable and that the complainant could know about the dismissal only on 3 -10 -1997 after obtaining the 'certified copy as false.

(3.) IT is well -settled that dismissal of a complaint either for failure of the complaint to appear or because of the fact that the learned Special Judge felt that there was no sufficient ground to proceed with the case by itself does not prohibit filing of a fresh complaint on the self -same facts. But the learned Special Judge may be reluctant to entertain successive complaint unless the default and non -appearance of the complainant on the earlier complaint petition are satisfactorily explained or some additional evidence are sought to be adduced. In the case of K. Rathnakara Hegde referred to supra this Court" held that under Section 249 , Cr. P. C, it is the discretion of the Magistrate to discharge the accused on account of absence of the complainant. But under Section 245, the Magistrate is bound to discharge the accused as soon as he is satisfied that the evidence led on behalf of the prosecution discloses no case 0 against the accused and as such the decision does not support the contention that the learned Magistrate could not discharge the accused at all under Section 249. Cr..P. C.. There is no dispute that in the earlier complaint petition, on 9 -10. -1996 to which T.R. Case No. 130 of 1995 was fixed, the complainant was absent on calls, no step was taken on behalf of the complainant and the accused persons were represented through their counsel. The complaint petition was dismissed for non -appearance and for not taking of any step by the complainant and the accused persons were discharged from their bail bonds and thus, there was no illegality in the order of the learned Special Judge in discharging the accused persons since the learned Special Judge was vested with the discretion to dismiss the complaint and discharge the accused on account of the absence of the complainant. There is no dispute that the complainant (petitioner) filled the second complaint petition before the learned Special Judge on 29 -10 -1997, which was registered as T.R. No. 177 of 1997 basing on the self -same allegations that the alleged occurrence took place on 23 -10 -1995, on which the earlier complaint petition was based and filed on 1 -11 -1995. It is also undisputed that the complaint did not take any step nor was present on the date, to which the earlier case was posted and the' complaint was dismissed as such. The facts and circumstances of the aforesaid case referred to supra were totally different which have no application to the present facts of the case. The Apex Court in the case of Pramatha Nath Talukdar (supra) held that an order of dismissal of a complaint is no bar to the entertainment of second complaint on the same 'facts, but it will be entertained only in exceptional circumstances, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been Brought on the record in the previous proceedings, have been adduced.