NAMDEO GANPAT PHULMALI Vs. EMPEROR

JUDGEMENT

(1.) NAMDEO , the son of Ganpat, was tried and convicted in the Court of the Naib Tahsildar of the offence punishable under Section 323, Penal Code and sentenced to pay a fine of Rs. 10. His appeal was dismissed. He has filed this petition. The main point argued upon this application is that a previous complaint made against the applicant on the same facts in the Court of the Tahsildar had been dismissed under Section 203, Criminal P.C., and that therefore the Naib Tahsildar should not have entertained the complaint. The learned Counsel relies on Allah Ditta v. Karam Baksh A.I.R. 1930 Lah. 9, Dhana Reddy v. Emperor A.I.R. 1930 Rang. 156 In re Mahadev Laxman A.I.R. 1925 Bom. 258 and Queen-Empress v. Adam Khan (99) 22 All. 106 in support of his contention. These cases are in no way helpful to the applicant. In Allah Ditta v. Karam Baksh A.I.R. 1930 Lah. 9 it was clearly conceded that a second complaint on the same facts was entertainable even though a previous complaint had been dismissed under Section 203 and that it was not absolutely necessary to get the previous order of dismissal under Section 203 set aside, and further that the mere fact that a superior Court has dismissed a petition for revision would not legally be a bar to the institution of a fresh complaint. It was however, pointed out that the second complaint should be entertained only in exceptional circumstances. In Dhana Reddy v. Emperor A.I.R. 1930 Rang. 156 also it was held that the dismissal of a complaint under Section 203 did not bar the filing of a fresh complaint on the same facts. In In re Mahadev Laxman A.I.R. 1925 Bom. 258 also it was held that notwithstanding the dismissal of a complaint under Section 203 it was open to the complainant to file another complaint on the same facts before another Magistrate. These cases substantially take the same view as was taken by the late Court of the Judicial Commissioner in Makhatambi v. Hassan Ali (05) 1 N.L.R. 18.

(2.) THERE is no doubt that in Queen-Empress v. Adam Khan (99) 22 All. 106 a different" view was taken but that case was considered in Makhatambi v. Hassan Ali (05) 1 N.L.R. 18 and was also explained in Emperor v. Mehrban Husain (06) 29 Ali 7 and Ram Bharos v. Baban . My attention is particularly invited to the fact that in In re Mahadev Laxman A.I.R. 1925 Bom. 258 the learned Judges in that case did not think it advisable to let the second complaint be prosecuted, but that was due to the fact that there was no trial on the complaint and that the High Court had been moved before the trial commenced. In the present case both the Courts below have found on the evidence that the applicant had committed the offence and I think it would not be proper for this Court to interfere in the face of the law which permits such fresh complaints as the one in the present case. The application is dismissed.