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2015 DIGILAW 164 (GAU)

MD. IMRAN HUSSAIN v. MD. AFTAB KHAN

2015-02-12

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is directed against the order dated 17.03.2009 of the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati, passed in CR Case No. 1757/2008, dismissing the complaint that was filed by the appellant u/s 138 of the N.I. Act. For a ready reference, the impugned order is quoted below:- “Complainant is absent without any step. Accused is present. Perusal of the case record reveals that the complainant had been absent, on couple of earlier dates, without any step. This conduct of the complainant forced me to presume that, the complainant had lost its interest in further progress of its case. In view of the conduct of the complainant and as per the provision of section 256 of the Code of Criminal Procedure, 1973, the complaint is dismissed.” 2. While Mr. A.K. Purakayastha, learned counsel for the complainant/appellant referring to the grounds urged in the appeal, submits that the complainant was prevented from appearing in the Court on the date of the impugned order, Mr. B. Talukdar, learned counsel representing the respondent submits that as will be evident from the impugned order itself preceded by the earlier orders. There was no sufficient reason for non appearance of the complainant/appellant in the proceeding. According to him, the impugned order is not liable to the interfered with. He further submits in reference to the decision of this Court reported in (2008) 4 GLT 707 [Chief Executive Officer-vs- Tenzing Gopy Lama and others] that the appeal against the order of dismissal of the complaint is not maintainable and at best the complainant/appellant may be entitled to file a 2nd complaint, subject, however, to the law of limitation etc. 3. In Tenzing Gopu Lama (Supra), it was held that no appeal would lie against dismissal of complaint and acquittal of the case. Said view has been taken in reference to the Apex Court’s decisions discussed in the judgment. In paragraphs 24 and 29 of the said judgment, it has been held thus:- 24. Despite dismissal of the Revision Applications the complainant has an alternative remedy to pursue the alleged violation of the provisions of Cantonments Act, 1924 by way of filing fresh complaint. In the case of Pramatha Nath Talukdar –vs- Saroj ranjan Sarkar ( AIR 1962 SC 876 ) and in the case of Major General A.S. Gauraya & Anr. Despite dismissal of the Revision Applications the complainant has an alternative remedy to pursue the alleged violation of the provisions of Cantonments Act, 1924 by way of filing fresh complaint. In the case of Pramatha Nath Talukdar –vs- Saroj ranjan Sarkar ( AIR 1962 SC 876 ) and in the case of Major General A.S. Gauraya & Anr. –vs- S.N. Thakur & Anr ( AIR 1986 SC 1440 ), the Hon’ble Supreme Court has permitted filing of second complaint on the same facts, while rejecting the theory of revival of the same complaint dismissed by a Magistrate. The relevant observations of the Apex Court are as follows: 9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256(1) of the Criminal P.C enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a Criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar, 1962 Supp (2) SCR 297: ( AIR 1962 SC 876 ) filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C does not contain any provision enabling the Criminal Court to exercise such an inherent power.” 29. Apart from the authorities discussed hereinabove regarding the permissibility to file second complaint, I find that Section 300 of CrPC also permits this course of action in the case of the State of Karnataka Vs. C. Nagarajaraswamy, reported in (2005) 8 SCC 370 , the Hon’ble Supreme Court has held that fresh proceeding after the discharge of the accused on the ground of invalid sanction for prosecution is permitted. C. Nagarajaraswamy, reported in (2005) 8 SCC 370 , the Hon’ble Supreme Court has held that fresh proceeding after the discharge of the accused on the ground of invalid sanction for prosecution is permitted. In my considered opinion, the spirit of Section 300 CrPC is also applicable for allowing the prosecution/complainant to file second complaint on the same facts due to dismissal of the earlier cases on the ground of default, provided the complainant can show that the case could not be pursued due to bona fide reasons. 4. In view of the above, while not interfering with the impugned order dated 17.03.2009 of the learned Judicial Magistrate 1st Class, Kamrup, Guwahati in CR case No.1757/2008, liberty however granted to the complainant to file fresh complaint, subject, however, to the question of limitation etc, which might be raised by the respondent and admissible in law. 5. With the above liberty, the appeal stands disposed of. 6. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.