(1.) The facts of this case briefly are that on September 8, 1946, the complainant Hansabai filed a criminal complaint against the accused under Secs.447 and 504, Indian Penal Code, and Section 24 of the Cattle Trespass Act, before the First Class Magistrate, Haveli. This was dismissed as she was absent on the date of the hearing. Thereafter she brought a fresh complaint in the same Court. After recording the evidence adduced by her, the Magistrate discharged the accused on March 5, 1947. A fortnight later, on March 18, 1947, the complainant filed a third complaint on the same facts against the accused. This was transferred to the Third Class Magistrate, Haveli. The Magistrate decided to inquire into the case again and issued summonses to the accused. After the evidence, which the complainant produced, had been taken, the accused applied to the Magistrate that no charge should be framed, as he had previously been discharged on the same evidence. The Magistrate did not accept this argument and on November 15, 1947, framed a charge against the accused and passed an order that the case should proceed. On December 9, 1947, the accused made a revision application to the Sessions Judge, Poona, in which he requested that the order passed by the Magistrate on November 15, 1947, should be set aside. The Sessions Judge has made a reference to this Court, recommending that the proceedings pending before the Magistrate should be quashed.
(2.) It is now well-settled that the discharge of an accused person does not operate as a bar to the institution of fresh criminal proceedings against him for the same offence, and that it is competent for a Magistrate to entertain another complaint on the same facts and to enquire again into the case against the accused. (See In re Mahadev Laxman (1924) 27 Bom. L.R. 352, Emperor V/s. Amanat Kadar (1928) 31 Bom. L.R. 146 and Alimahomed V/s. Kasturchand (1938) 41 Bom. L.R.) The Third Class Magistrate, Haveli, was, therefore, competent to entertain the third complaint brought by the complainant against the accused. Section 203, Criminal Procedure Code, provides that the Magistrate before whom a complaint is made may dismiss the complaint, if after considering the statement of the complainant and the result of the investigation or inquiry under Section 202, if any, there is, in his judgment, no sufficient ground for proceeding. In coming to a decision whether there is sufficient ground for proceeding with the complaint, the Magistrate must take into consideration previous proceedings, if any. Where an accused person has been discharged after consideration of all the evidence produced by the complainant, and a fresh prosecution is instituted thereafter on the same facts, the Magistrate cannot be said to have sufficient ground for proceeding with the complaint unless he is satisfied that some additional evidence is forthcoming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest miscarriage of justice. It cannot be said to be in the interests of justice that a party who has obtained a decision from a Court after a full consideration of his case should be given an opportunity to seek from the same Court or another Court of co-ordinate jurisdiction a different decision on the same facts and on the same evidence. The proper remedy for the complainant, who is dissatisfied with an order of discharge passed under Section 253(7), is to move the superior Court to set it aside and order further enquiry in the case under Section 436, Criminal Procedure Case. For, otherwise it would be open, to a complainant to file a series of complaints on the same facts, a new complaint being brought as soon as or shortly after the accused has been discharged in the previous case, and thus continue indefinitely the harassment of the accused.
(3.) As long ago as 1887, it was held by this Court in Queen-Empress V/s. Bapuda (1887) Unrep Or. C. 350 that while there is nothing to prevent a Magistrate, after he has once discharged an accused under Section 253, from inquiring again into the case against him, as the discharge not operating as an acquittal leaves the matter at large for all purposes of judicial inquiry, the Magistrate is bound to exercise due discretion and to take that discharge into account and avoid oppressive proceedings. In Reg. V/s. Devama and Somshekhar (1875) I.L.R. 1 Bom. 61, 66 it was observed that while a Magistrate has discretion to entertain a fresh complaint against a person who had been discharged by another Magistrate, he should not normally exercise such discretion unless it should appear to him that justice requires him to adopt that course. In In re Mahadev Laxman (1924) 27 Bom. L.R. 352 it has been held that the complainant is bound to disclose to the Magistrate before whom he makes a fresh complaint that his previous complaint was dismissed. In Queen-Empress V/s. Dolegobind Dass (1900) I.L.R. 28 Cal. 211 Chief Justice Maclean at p. 217 expressed the view that no Magistrate ought to rehear a case previously dealt with by another Magis-grate of co-ordinate jurisdiction upon the same evidence only, unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice. In Dwarka Nath Mondul Vs. Beni Madhab Banerji (1901) I.L.R. 28 Cal. 652, 653, F.B Mr. Justice Prinsep has stated that while according to the decisions of the Calcutta High Court a fresh complaint could be brought against a person who had been discharged, that Court had "thought it proper to restrict the exercise of this power to cases in which fresh evidence was forthcoming." Similar view has been taken by the Madras High Court in In re Koyassan Kutty [1018] A.I.R. Mad. 494. In his judgment in that case Mr. Justice Sadashiv Aiyar observed that while there is nothing in law against the entertainment of a second complaint on the same facts on which a person has already been discharged, inasmuch as a discharge is not equivalent to an acquittal, a person who has been charged once and discharged ought not to be harassed again on the same charge, unless very strong grounds are shown, e.g. new facts are discovered, which were not within the knowledge of prosecution when the first charge was brought.