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CASE NO.: Appeal (crl.) 121  of  2001 Special Leave Petition (crl.)   4103     of  1999

PETITIONER: JATINDER SINGH & ORS.

       Vs.

RESPONDENT: RANJIT KAUR

DATE OF JUDGMENT:       30/01/2001

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

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     J U D G M E N T

     THOMAS, J.

     Leave  granted.   The  sole   question  is  whether  a complaint,  once dismissed by a magistrate for default,  can be  refiled?   Appellant,  who is alleged  to  have  married twice, and that too with the sibling of the first spouse, is now  aggrieved as the High Court held that there is  nothing illegal in filing a second complaint on the fact situation.

     Ranjit Kaur, the undeterred complainant, felt beguiled by  the appellant, whom she described as her lawful husband, and  her  younger sister Rajwant Kaur connived with him  for performing  a marriage between them clandestinely during the time  when  Ranjit Kaur was enceinte.  After the  child  was born  to her she filed the first complaint against  Jatinder Singh    the appellant.  In the complaint she  arrayed  the appellant  as the first accused indicting him of the offence of  bigamy  (Section 494 IPC) and four others including  her sister  Rajwant  Kaur were arraigned for abetting  the  said offence (Section 109 IPC).

     The  magistrate before whom she filed a complaint kept on  waiting for holding an inquiry under Section 202 of  the Code  of Criminal Procedure (for short the Code).  It is a pity  that  a complaint filed by the respondent Ranjit  Kaur before  the  Judicial  Magistrate  of  First  Class,  Batala (Punjab)  remained  in the incubation stage for  nearly  one year  during  which she had to appear in the court  on  many occasions  without the accused being called to appear.   Her statement  was  recorded on 12.3.1992 and the statements  of two  of her witnesses were recorded many months  thereafter. But  on  15.12.1993, the magistrate dismissed the  complaint merely because she was not present inside the court when the case  was called.  Instead of taking up the matter to higher

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courts  Ranjit  Kaur  has chosen to file  another  complaint dated  15.2.1993  before the same magistrate containing  the same allegations as stated in the first complaint.  However, the  magistrate this time took cognizance of the offence and issued  process  to  the accused persons  mentioned  in  the complaint.

     The  appellant first filed a revision petition  before the   Sessions   Court  after   getting  summons  from   the magistrate, but when he felt its maintainability doubtful he withdrew  the revision petition and moved the magistrate for dismissal  of the complaint on the sole ground that  another complaint,  containing  the same allegations, was  dismissed earlier.   The  magistrate  overruled   his  objections  and proposed  to  proceed  with  the  case,  but  the  appellant succeeded  in stalling the proceedings as the Sessions Judge entertained  a  revision  petition once again filed  by  the appellant.

     That  revision  was allowed by the Sessions Judge  and there  was a temporary reprieve for the appellant from court proceedings.   But the complainant, with alacrity, moved the High  Court by a revision petition in challenge of the order passed by the Sessions Judge.  A learned Single Judge of the High  Court  of Punjab and Haryana, by a very  short  order, revived the magistrates order and upset the order passed by the  Sessions  Judge.  It is the said brief order passed  by the  Single  Judge which the appellant has assailed  now  by special leave.

     This is what the High Court has stated in the impugned order:   The  earlier complaint was dismissed on  2.12.1992 but  not on merits.  It was dismissed in default.  In  those circumstances,  the  second complaint was  maintainable  and rightly  held  by the Magistrate that special  reasons  have been advanced in the second complaint.

     Learned   counsel  for  the   appellants  raised   two contentions before us.  The first is, dismissal of the first complaint,  whether  for default or on merits, has the  same effect  of exonerating the accused of the allegations and so long  as  that  order  remains, a second  complaint  is  not maintainable  in  law.   The other contention  is  that  the complainant in her second complaint suppressed the fact that her  first  complaint  was dismissed and  hence  the  second complaint should have been dismissed for want of bona fides.

     There  is  no  provision in the Code or in  any  other statute  which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not  result in a conviction or acquittal or even  discharge. Section  300  of the Code, which debars a second trial,  has taken  care to explain that the dismissal of a complaint or the  discharge  of  an accused is not an acquittal  for  the purpose  of  this  Section.   However,  when  a  magistrate conducts  an  inquiry  under  Section 202 of  the  Code  and dismisses the complaint on merits, a second complaint on the same  facts cannot be made unless there are very exceptional circumstances.   Even so, a second complaint is  permissible depending upon how the complaint happened to be dismissed at the first instance.

     Under  Section  202  of  the   Code  a  magistrate  is conducting  an  inquiry  before issuing the process  to  the accused,  for  the purpose of determining whether there  is

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sufficient  ground for proceeding.  Section 203 of the Code empowers  him  to  dismiss a complaint  after  holding  such inquiry  if  he is of opinion that there is  no  sufficient ground  for proceeding.  In that event he has to record the reasons as to why he held that there is no sufficient ground for proceeding, though he need not write an elaborate order. Section  203  of the Code reads thus:  203.   Dismissal  of complaint.- If, after considering the statements on oath (if any)  of the complainant and of the witnesses and the result of  the inquiry or investigation (if any) under section 202, the  Magistrate  is of opinion that there is  no  sufficient ground  for proceeding, he shall dismiss the complaint,  and in  every such case he shall briefly record his reasons  for so doing.

     A  four Judge Bench of this Court said in Chandra  Deo Singh vs.  Prokash Chandra Bose (AIR 1963 SC 1430) as to the effect of not recording reasons while dismissing a complaint under  Section  203 of the Code.  This is what  the  learned Judges  said on that score:  The complainant is entitled to know  why  his complaint has been dismissed with a  view  to consider  an approach to a revisional court.  Being kept  in ignorance  of  the reasons clearly prejudices his  right  to move the revisional court and where he takes a matter to the revisional   court  renders  his   task  before  that  court difficult.

     If the dismissal of the complaint was not on merit but on  default of the complainant to be present there is no bar in the complainant moving the magistrate again with a second complaint  on  the same facts.  But if the dismissal of  the complaint  under  Section 203 of the Code was on merits  the position could be different.  There appeared a difference of opinion  earlier as to whether a second complaint could have been  filed  when the dismissal was under Section 203.   The controversy  was  settled  by this Court  in  Pramatha  Nath Talukdar  vs.   Saroj  Ranjan Sarkar (AIR 1962 SC  876).   A majority  of Judges of the three Judge Bench held thus:  An order of dismissal under S.203, Criminal Procedure Code, is, however,  no bar to the entertainment of a second  complaint on  the  same  facts  but it will  be  entertained  only  in exceptional  circumstances,  e.g., where the previous  order was  passed on an incomplete record or on a misunderstanding of  the nature of the complaint or it was manifestly absurd, unjust  or foolish or where new facts which could not,  with reasonable diligence, have been brought on the record in the previous  proceedings, have been adduced.  It cannot be said to  be in the interest of justice that after a decision  has been given against the complainant upon a full consideration of  his case, he or any other person should be given another opportunity to have his complaint enquired into.

     S.K.   Das, J.  (as he then was) while dissenting from the  said majority view had taken the stand that right of  a complainant  to  file  a  second   complaint  would  not  be inhibited  even by such considerations.  But at any rate the majority  view  is  that  the   second  complaint  would  be maintainable if the dismissal of the first complaint was not on merits.

     We  do not find much force in the next contention that the  complainant lacked bona fides as he suppressed the fact of dismissal of the first complaint.  We cannot overlook the fact  that  the second complaint was filed before  the  same magistrate  who dismissed the first complaint, and that  too

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was  done within a short interval.  Even otherwise,  nothing would turn out from the mere fact that the complaint did not contain  an averment that the first complaint was  dismissed for default.

     As  the  magistrate did not consider the materials  on record  when  he dismissed the first complaint, instead  the said  course was adopted by him only as a consequence of the default  of complainant presenting herself when the case was called,  there is no reason to shut the door before her once and  for all.  The High Court has correctly interfered  with the  order of the Sessions Court by restoring the  complaint and the proceedings initiated thereon.  We therefore dismiss this appeal.