ALI KHANDAY Vs. SHABAN LONE

JUDGEMENT

(1.) THIS is an application under section 561 -A Cr. P. C. for quashing the proceedings pending in the court of C. J. M. Sopore u/s 494/109 R P. C. against the petitioner and respondents 2 to 9. It has been alleged that previous to this complaint, a complaint under same sections has been filed in the same court except that some of the accused persons mentioned in the present complaint had not been mentioned in the earlier one. It has been submitted that the earlier complaint was dismissed in default on 3rd of August, 1978. It has been contended in the petition and submitted by the counsel for the petitioner that the order dated 12.2.198O summoning the accused Nos. 1 & 2 u/s 494 R.P.C. and accused Nos. 3 & 4 u/s 109 R. P. C, was not in accordance with law on the ground that when the complaint was filed in the trial court after about 16months of the disposal of the earlier complaint, learned Magistrate postponed the issuance of process to the accused by virtue of order 22nd Nov. 1979 and directed the applicant therein to produce further evidence which he did though after obtaining three or four adjournments for the purpose. It was on 122. 1980 that the order of issuance of process summons and warrants was given by the learned Magistrate.

(2.) THE argument of the learned counsel for the petitioner was that while postponing issuance of process by virtue of order dated 22.11.1979, the learned Magistrate has given no reasons which was incumbent upon him u/s 202 Cr. P .C. He has next said that the present complaint has been filed after 16 months of the dismissal of the earlier one and further evidence before the process was directed to be issued to the accused was not produced number of times by the complainant and all these facts together show that the complaint was frivolous and learned counsel therefore submitted that the proceedings may be quashed u/s 561 -A Cr. P C.

(3.) THOUGH u/s 202 Cr. P.C. reasons for postponing the issuance of the process have to be recorded by the Magistrate, yet on going through and considering order dated 22nd of November, 1979, it appears that the Magistrate has asked the complainant to produce some more witnesses before he would come to a definite conclusion as to whether process was or was not to be issued against the accused. The reason though not recorded could be found in between the lines of the order dated 22.11.1979. It has been admitted by the learned counsel for the petitioner that there was no bar as such for complainant to bring an action even though an earlier action has been disposed of. The effect bringing fresh action after 16 months of the disposal of the earlier one would be considered by the trial court.