KUMARIAH NAICKER AND SIX ORS Vs. CHINNA NAICKER

JUDGEMENT

(1.) THIS is a reference by the Additional District Magistrate of Ramnad with regard to G.C No. 64 of 1945 on the file of the Additional Sub-Magistrate of Aruppukottah. Notice has been given to the complainant and he has not appeared in this Court. He filed a complaint for dacoity, theft etc., aginst the accused. That was investigated by the police and was finally thrown out under Section 203 of the Criminal Procedure Code. THIS was on the 23 December, 1944. On the 18 January, 1945, the complainant presented another complaint against the same accused on the same facts. The accused objected to the preferring of the complaint. The Magistrate held that the dismissal of the prior complaint under Section 203 was not a bar to the entertainment of the second complaint. The Additional District Magistrate is of the opinion that the order of the Sub-Magistrate was unsustainable as he had no jurisdiction to entertain the second complaint as the prior complaint had been dismissed and refers the case under Section 438 of the Criminal Procedure Code-to quash the order of the Sub-Magistrate taking the complaint on file. The fact that a previous complaint was thrown out under Section 203 of the Criminal Procedure Code is no bar to the entertainment of the second complaint. But the question for consideration is whether on the facts stated it will not be an abuse of process to take up the second complaint on file and proceed with it in the circumstances of this case. The original complaint was for theft, dacoity, etc., and in the second complaint the charge of dacoity and theft was not pressed. There is nothing to indicate that there was no proper investigation on the previous complaint or that there was any necessity for investigating the second complaint. Even with regard to the offences in respect of which the second complaint was presented the Magistrate who dismissed the earlier complaint has pointed out that there was no disinterested witness to prove the complainant's allegation. The Magistrate was of the opinion that the evidence likely to be available could not possibly lead to a conviction. Nothing was alleged by the complainant in the second complaint which would justify the Magistrate modifying that view. No additional witness had been cited in the second complaint, nor as pointed out by the Additional Magistrate, was it alleged that any other kind of evidence had been discovered or was likely to be forthcoming. In these circumstances to entertain the second complaint would be an abuse of the process of the Court and the order entertaining the complaint is quashed.