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2003 DIGILAW 477 (PAT)

Lakshmi Sinha v. State Of Bihar

2003-04-24

ASHOK KUMAR VERMA, CHANDRAMAULI KR.PRASAD

body2003
Judgment 1. A complaint was filed in the court of the Chief Judicial Magistrate, Bettiah. He made over the same to another Magistrate under section 192 of the Code of Criminal Procedure. Having found that a prima facie case under sections 323, 504, 379 and 304A of the Indian Penal Code is made out, he directed for issuance of summons to the petitioners. Petitioner filed Cr. Misc. No. 24388 of 1999 (Laxmi Sinha and another V/s. State of Bihar and another) for quashing the prosecution including the order directing for issuance of process. Said application was dismissed for noncompliance of the peremptory order dated 21.12.99. Petitioners thereafter filed application for restoration which was registered as Cr. Misc. No. 7297 of 2000 (Laxmi Sinha and anr. V/s. State of Bihar and Anr.). However, this Court finding absence of sufficient cause by order dated 24.3.2000 declined to restore the application and dismissed the restoration application. Thereafter petitioners have chosen to file the fresh application. The matter came up for consideration earlier on 11.4.2002 when one of us (Prasad, J.) sitting singly observed as follows: "Whether entertaining second application for quashing, notwithstanding dismissal of an earlier application for dafault as also the restoration application shall be against the public policy or not is a question of importance and I deem it expedient that the same be decided by a Division Bench. Let the record be laid before the Hon ble the Chief Justice." That is how the matter has come before us. 2 Mr. Mani Lal appearing on behalf of the petitioners submits that petitioners although came up before this Court for quashing of the prosecution and notices were issued in the case but on account on noncompliance of the peremptory order the application was dismissed and the petitioners though did not succeed in the restoration application, still there being no decision on merit, petitioners second application cannot be thrown out only on the ground of dismissal of the earlier application and the restoration application. In support of his submission learned counsel has placed reliance on a judgment of the Supreme Court in the case of Jatinder Singh and others V/s. Ranjit Kaur ( AIR 2001 SC 784 ) and my attention has been drawn to paragraph 12 of the judgment which reads as follows :- "12. In support of his submission learned counsel has placed reliance on a judgment of the Supreme Court in the case of Jatinder Singh and others V/s. Ranjit Kaur ( AIR 2001 SC 784 ) and my attention has been drawn to paragraph 12 of the judgment which reads as follows :- "12. 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 V/s. Saroj Ranjan Sarkar, AIR 1962 SC 876 : [1962(1) Cri.LJ.770]. A majority of Judges of the three Judge Bench held thus (para 48): "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." 3. 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." 3. Another decision on which reliance has been placed is the judgment of a learned single Judge of this Court in the case of State of Bihar V/s. Ranjeet Kumar Chatterjee [ 2000(1) PLJR 25 ] and my attention has been drawn to paragraph 5 of the judgment, which reads as follows: "5. The objection of the opposite party as to the maintainability of the present application should first of all be disposed of. The petitioners had as in the instant petition, jointly challenged the impugned order of cognizance earlier by preferring Cr. Misc. No. 13772 of 1992 which was admitted on 13.5.1993. The same was laid before a learned Single Judge of this court for hearing on 10.1.94, but it was dismissed for default. The petitioners had then preferred a restoration application which was registered as Criminal Misc. No. 645/94, to recall the said order dated 10.1.94, and to restore Criminal Misc. No. 13772/92 to its original file, which was also dismissed by a learned single Judge of this court by order dated 2.2.94 (Annexure-1). Relying on the provisions of section 362 of the Code as well as the judgment of the Supreme Court reported in AIR 1990 SC 1605 (Simrikhia V/s. Dolley Mukherjee), learned counsel for the O.P. submitted that the inherent powers cannot be exercised by this court to review its own judgment. I am unable to accede to this contention. Section 362 of the Code reads as follows: "362. Court not to alter judgment- Save as otherwise provided by this Court or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." It is manifest from the aforesaid facts that this court had not delivered any judgment on the merits of the case. It was rather dismissed for non-appearance of the counsel and the provisions of section 362 of the Code are not at all attracted. Therefore, the aforesaid judgment of the Supreme Court for the same reason is wholly inapplicable to the present case which basically dealt with the scope and content of section 362 of the Code. It was rather dismissed for non-appearance of the counsel and the provisions of section 362 of the Code are not at all attracted. Therefore, the aforesaid judgment of the Supreme Court for the same reason is wholly inapplicable to the present case which basically dealt with the scope and content of section 362 of the Code. 5.1 The petitioners have placed reliance on the judgment of a learned single Judge of this court reported in 1988 PLJR 121 (Tarkeshwar Mishra V/s. State of Bihar). In that case the first quashing petition was dismissed as withdrawn long time ago. There was no progress in the trial in spite of complete absence of laches on the part of the accused persons therein. In those circumstances, this Court had held that dismissal of the earlier application was no bar to the maintainability of a second application for quashing the prosecution. 5.2 Law is well settled that if an earlier quashing petition has been dismissed, not on merits, but on grounds like non-appearance of the counsel, nonpayment of court fee etc. then a second application is maintainable. Accordingly I have no hesitation in concluding that the present application in the circumstances stated above is maintainable." 4. I do not find any substance in the submission of Mr. Mani Lal. True it is that the earlier application filed by the petitioner was dismissed not on merits but on account of non-compliance of the peremptory order. Further the application to restore the same was dismissed on account of the fact that the petitioner was not able to show sufficient cause. Thus this Court did not adjudicate the case on merits and in such a situation the question is not as to whether entertaining another application would amount to review of the order but the question is as to whether such application is fit to be entertained on ground of public policy. I am of the opinion that entertaining second application would not be in the larger interest of administration of justice. It may encourage unhealthy practice and can be used as a device for Bench hunting. The dismissal of the application for restoration because of lack of sufficient cause will have no meaning and unscrupulous litigants may use the same to pollute the stream of justice. It may encourage unhealthy practice and can be used as a device for Bench hunting. The dismissal of the application for restoration because of lack of sufficient cause will have no meaning and unscrupulous litigants may use the same to pollute the stream of justice. In my opinion, wisdom demands and public policy induces me to observe that it shall not be prudent to entertain second application. 5. Now reverting to the authority of the Supreme Court in the case of Jatinder Singh (supra) holding the second complaint to be maintainable, one has to bear in mind that the complaints are filed before the Magistrates and allocation of jurisdiction to the Magistrates is on different count than the jurisdiction exercised by the Judges of the High Court on account of allocation of jurisdiction by Chief Justice. In the case of State of Bihar V/s. Ranjit Kumar Chatterjee (supra) the question was as to whether the order of dismissal of an application for default is a judgment or not and the same can be reviewed by this Court and in that context it was held that entertaining second application would not amount to review of the earlier order. Here I am not persuaded to entertain this application on the ground of public policy and not on the ground that the same would amount to review and as such the decisions referred to above are of no assistance to the petitioners. 6. Accordingly I hoid that entertaining second application for the same relief which was the subject matter of earlier application dismissed for default and the restoration application having also failed, would be against public policy. 7. Even on merits I do not find it a fit case for interference in exercise of jurisdiction under section 482 of the Code of Criminal Procedure. The iearned Magistrate on consideration of the allegation made in the petition of complaint, statement of complainant on solemn affirmation and the statements of the witnesses examined during the course of enquiry, prima facie held that offence under sections 323, 504, 379 and 304A of the Indian Penal Code is made out and accordingly directed for issuance of process. Delay in filing the complaint, non-examination of all the witnesses mentioned in the petition of complaint, delay in passing the order issuing process and untruthfulness of the allegation are the grounds urged to knock down the impugned order. Delay in filing the complaint, non-examination of all the witnesses mentioned in the petition of complaint, delay in passing the order issuing process and untruthfulness of the allegation are the grounds urged to knock down the impugned order. None of these grounds can be said to be good grounds for quashing the order of issuing process. Delay in lodging the complaint, truthfulness or otherwise of the allegation are issues which are subject matter of trial. It is not the case of the petitioner that processes have been issued beyond the period of limitation. Delay itself cannot be a ground to quash the order issuing process. As regards non-examination of all the witnesses mentioned in the complaint, the case in hand, being not exclusively triable by court of session, in view of proviso to section 202(2) of the Code of Criminal Procedure, learned Magistrate was not obliged to direct the complainant to produce all his witnesses and take their statements on oath. 8. . In the result, I do not find any merit in the application and the same is dismissed.