RAM NARAIN CHAUBEY Vs. PANACHAND JAIN

JUDGEMENT

(1.) THIS is a reference by the Second Additional Sessions Judge of Patna in respect of an order passed by the learned Sub -divisional Magistrate of Dinapure, dated 4th March 1948, in two criminal cases, one bearing No. 1580 and the other 159 0 of 1947. The facts leading up to the order under reference are shortly stated below. The petitioner before the learned Sessions Judge was Ramnarayan Chaubey, an employee of one Haroon Taj Mohammad. For the sake of convenience I shall refer to him as the petitioner. The opposite party, Mr. P. 0. Jain, is a Factory Manager of the Jagdishpur Zamindary Company, Ltd. The South Bihar Sugar Mills, Ltd., Bihta, leased out the sugar section of their Mills to the Jagdishpora Zamindary Company Ltd., but the old stock of molasses was leased to Haroon Taj Mohammad. On 7th May 1947, the opposite party gave a first information to the officer in charge of Bihta Police Station alleging that the petitioner and another person called Bam Chandar were seen running away when some men deputed by the Jagdishpur Zamindary Company were watohing the tanks from which some 9000 ms of molasses had been previously stolen. Before the local police could submit a report as a result of the investigation into the allegations made in the first information, the opposite party filed two petitions of complaint on 16th May 1947. In one of the petitions of complaint the allegations were the same as the first information. In the other petition of com -plaint, it was alleged that the petitioner and two other persons had committed theft of molasses worth Rs. 4500. In the first petition of complaint in which the allegations were the same as in the first information, a prayer was made for taking action against the accused for offences under 38. 426 and 457, Penal Code. In second petition of complaint a prayer was made for taking action against the accused persons for offences under Sections 426 and 457, Penal Code. The first petition of complaint gave rise to case no. 159C, and the second petition gave rise to case no. 1690 of 1947. The learned Sub -divisional Magistrate after examining the complainant in both the cases, directed the Sub -Inspector of Police, Bihta, to investigate into the allegations made and submit a report thereon. On 18th May 1947, the local police submitted a final report stating that the allegations were maliciously false and making a prayer that the complainant should be prosecuted for making a false complaint. This final report came up for consideration by the learned Sub -divisional Magistrate in case no. 1580, on Slat June 1947. Before that date the complainant had filed a protest petition on 16th June 1947. On 2lst June 1947, the learned Sub -divisional Magistrate accepted the final report submitted by the police and dismissed the complaint in Case No, 168C under the provisions of Section 203, Criminal P. C. Apparently, no order, was passed on the protest petition filed by the complainant on 16th June 1947. In case No. 1590 the final report of the police was put up on a much later date, and on 27th August 1947, the learned Sub -divisional Magistrate passed the following order:

(2.) IT is against the aforesaid order of the learned Sub -divisional Magistrate that the present reference has been made. We have heard learned Counsel for the petitioner as well as for the opposite party. Two main questions arise for consideration. The first question is if the learned Sub -divisional Magistrate had jurisdiction to revive the two complaints and take cognizance thereon, when his predecessor in office had already dismissed one of the complainants by an express order and the other complaint by implication. The second question is not one of juris -diotion but of propriety. Assuming that the learned Sub -divisional Magistrate had jurisdiction to revive the old complaints and take cogni -zanee thereon, was it proper for him to do so in the circumstances of the present case ? learned Counsel for the parties have addressed us on both these questions.

(3.) ON the second question, I think, the petitioner is on surer ground. It is now welj settled that although a previous order dismissing the complaint is no bar to the institution of a fresh case against the same accused, still a new complaint in respect of the tame offence should not be entertained, unless there are exceptional circumstances, e. g. where new facts which could not, with reasonable diligence, have been brought forward in the previous proceedings are adduced or there was some maiiitest error in the previous procetdingp, or the previous order was passed on an incomplete record or a mieunder. standing of the nature of the complaint to I have no desire to give an exhaustive list of the circumstances in which a new complaint may be entertained or the old complaint revived despite an order of dismissal under B. 303 ; but there are many decisions which have laid down that a fresh complaint should be entertained only in exceptional circumstances. learned Counsel for the petitioner has drawn our attention to some of these decisions; Allah Ditto, v. Karam Bahsh 12 Lab. 9 : A.I.R. (IT) 1980 Lah. 879 : 31 Cr. L. J. 1180 and Mohammad Din v. Mehtab Din 33 cr. L. j. 493 : 137 I. C. 520 Lab. In a decision of this Court in Biso Bam v. Emperor 66 I. '0. 76 : A.I.R. (9) 1922 pat. 372 : 23 Cr. L. J, 236 the following observation was made: