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2006 DIGILAW 19 (GAU)

Ram Krishna Singha v. Namita Das

2006-01-04

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the Petitioners and Mr. B. Ahmed, learned Counsel appearing for the Respondent Complainant. 2. This is an application for quashing of the complaint in CR Case No. 364/2005 whereby the learned Magistrate vide impugned order dated 9.6.2005 took cognizance and issued process. 3. The quashing of the complaint has been sought mainly on the ground that the Respondent complainant had earlier filed a complaint case being CR 284/2003 which continued for about two years but as the complainant failed to produce witnesses it was dismissed vide order dated 16.5.2005 which reads as follows: 16.5.2005 Complt. is absent with steps vide Petition No. 799/2005. No complaint witness is present today. Accd. Nibash Mahanta is present. Other accd. is represented. Seen the Petition No. 787/05 filed on behalf of accd. Ramkrishna Sinha for allowing to represent today. Prayer is allowed. On last date complaint as to produce all the witnesses for last chance. But today neither complainant nor any witness present today. Hence non production and non adducing witness of the complainant side case is dismissed for default of adducing evidence by the complainant side. The complainant thereafter filed the present complaint. 4. The quashing of the complaint has been sought mainly on the ground that as the earlier complaint has been dismissed for continued failure of the complainant to produce witnesses a fresh complaint on the same facts and same allegation does not lie. Admittedly, the Respondent has not filed or preferred any revision against the order dated 16.5.2005 as quoted above. 5. In view of the decision of the Apex Court in the case of Pramatha Nath Talukclar v. Saroj Ranjan Sarkar AIR 1962 SC 876 , and Bindeshwar Prasad Singh v. Kali Singh AIR 1977 SC 2432 it is well settled that a second complaint can lie only on fresh facts or even on previous facts only if a special case is made out. In the case of Mahesh Chand v. B. Janardhan Reddy AIR 2003 SC 702 , the Apex Court held: The second complaint would not be completely barred. There is no statutory bar in filing a second complaint on the same facts. In the case of Mahesh Chand v. B. Janardhan Reddy AIR 2003 SC 702 , the Apex Court held: The second complaint would not be completely barred. There is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 203 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient grounds for proceeding. Second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. 6. From the above we find that a second complaint is maintainable if the complaint petition makes out a special case. 7. In the present case, we find that the Respondent complainant has not made out any special case. The earlier complaint was dismissed by the trial Court by assigning reasons and on the ground that in spite of sufficient opportunity the complainant has failed to produce witnesses. 8. We have perused the complaint petition and find, not to speak of any special case, the complaint petition does not mention anything as to why a second complaint has been filed except stating that the complainant could not attend the Court due to illness. 9. Dr. Ahmed, learned Counsel appearing for the complainant has submitted that the complainant was prevented by the accused persons from attending the Court as she was threatened. There is no whisper about the above in the complaint petition and hence, we find that no special case exists for entertaining the second complaint. 10. In the result the revision is allowed. The proceeding in CR No. 364/2005 stands quashed.