THATH SINGH Vs. SUBE SINGH

JUDGEMENT

(1.) THIS is a petition under Section 482, CrPC, filed by the accused-petitioners, seeking quashment of the criminal complaint and the summoning order dated 18.12.1993, vide which the petitioners had been ordered to be summoned for the offences under Sections 379/427/506/120-B, IPC.

(2.) THE learned counsel for the accused-petitioners has sought quashment of the criminal complaint and the summoning order on two counts. Firstly, on the ground that the previous criminal complaint, filed by Sube Singh, complainant, was dismissed for non-prosecution on 29.9.1993 and thereafter, Sube Singh, complainant, had filed the second criminal complaint, on the same day, i.e. on 29.9.1993, without bringing any new material on the record. Secondly, it was submitted that the fresh criminal complaint, filed by the complainant- respondent, was barred by time. It was submitted that as per the case of the complainant, the occurrence had taken place on 18.2.1989, whereas, the criminal complaint was filed on 29.9.1993 i.e. after a lapse of more than three years and as such, the complainant was barred by time.

(3.) WITH regard to the maintainability of the second complaint, in my opinion, there would be no bar to the maintainability of second complaint, on the facts and circumstances of the present case. As referred to above, the previous criminal complaint (which was filed on 23.2.1989), was dismissed by the learned Judicial Magistrate on 29.9.1993 for non-prosecution, as no one had appeared on behalf of the complainant, at the time when the criminal complaint was called for hearing. On the same day i.e. on 29.9.1993, the complainant had filed the second complaint before the learned Magistrate, because the earlier complaint filed by the complainant, was dismissed for non-prosecution on that day. The complainant had given reasons in the criminal complaint about the non-appearance at the time when the complaint was dismissed for non- prosecution. The very fact that the second complaint was filed on the same day, would show that the learned Magistrate had dismissed the criminal complaint without waiting for the complainant and his counsel, even though, as per the allegations made by the complainant in the complaint, the complainant had appeared in the Court along with three witnesses at 11.30 a.m., but since the counsel was not available, the Court had directed the parties to be present at 3 p.m. and when the complainant, along with his counsel, had appeared before the Court at 3 p.m., they were told that the complaint had already been dismissed for non-prosecution. Thereupon, the complainant, on the same day, filed the fresh complaint in the Court of the learned Magistrate, giving all the facts about the manner in which the occurrence had taken place and also the circumstances under which the previous complaint was dismissed for non-prosecution. On the facts and circumstances of the present case, in my opinion, it could not be said that the second complaint was not maintainable, especially when, first complaint was dismissed for non-prosecution, in the absence of the counsel for the complainant and the case was still at the stage of recording pre-charge evidence.