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2015 DIGILAW 912 (GAU)

Chandana Das v. Sukumar Dutta

2015-07-24

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER Paran Kumar Phukan, J. - This revision is directed against the order dated 03.01.2005 passed by the learned Judicial Magistrate, First Class, Silchar in C.R. Case No. 4221/2003, whereby, the learned Court issued summons to the petitioners on a fresh complaint filed by the respondent No. 1 against them after dismissal of the earlier complaint filed on the same facts and acquitting the accused petitioners. 2. The respondent No. 1, herein, filed a complaint case before the learned Judicial Magistrate, First Class which was registered as C.R. Case No. 943/2003 under Sections 323/427/506/511/34 of the IPC. The learned Magistrate took cognisance against the petitioners and after their appearance, date was fixed for furnishing of readable copy of the complaint petition by the complainant to the accused petitioners. The complainant remained absent on that day and due to this reason the copy could not be furnished to the petitioners. The learned Magistrate due to absence of the complainant dismissed the complaint as per Provisions of Section 256 of the Cr.P.C. and acquitted the accused petitioners. 3. The complainant thereafter filed a fresh complaint before the Court on the same facts stating therein that in the earlier complaint filed by him due to mistake of date on the part of the engaged advocates clerk, the complainant could not appear which led to the dismissal of his complaint. The learned Court on the basis of the second complaint issued fresh summons to the accused petitioners. The order of the Magistrate dated 13.10.2003 passed in C.R. Case No. 943/2003 dismissing the earlier complaint reads thus:- "The three accused persons are present. Today is the date fixed for appearance of the accused as well as for furnishing of readable copy of the complaint petition by the complainant to the accused persons. However, the complainant is absent, without any steps. Today, the attendance of the complainant is necessary for furnishing a copy of the complaint petition to the accused. Heard the learned counsel for the accused persons praying that the case be dismissed under Section 256 Cr.P.C. Perused the C.R. The case is a summons procedure one and the complainant is absent on a day on which his presence is essential. Heard the learned counsel for the accused persons praying that the case be dismissed under Section 256 Cr.P.C. Perused the C.R. The case is a summons procedure one and the complainant is absent on a day on which his presence is essential. Hence, in my opinion this is a fit case to be dismissed under Section 256 Cr.P.C. As such, I dismissed the case for default and acquitted the accused persons under Section 256 Cr.P.C. The case is disposed of." 4. It is thus clear that the learned Judicial Magistrate, First Class not only dismissed the complaint on the ground that the complainant was absent but was also pleased to pass a specific order of acquittal of the accused persons and the case was finally disposed of as per Provisions of Section 256 Cr.P.C. Section 256 Cr.P.C. reads thus:- "256 Non-appearance or death of complaint:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day; Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal assistance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." 5. Thus it is evident that Section 256 of the Cr.P.C. enables a Magistrate to acquit the accused if the complainant does not appear on the date fixed. Thus the order of dismissal of a complaint by the Court due to absence of the complainant is a proper order. 6. Learned advocate appearing on behalf of the revision petitioners submitted that since the complaint has been dismissed and accused persons have been acquitted by the Court as per Provisions of Section 256 Cr.P.C., there was no scope for filing a second complaint on the same facts. 6. Learned advocate appearing on behalf of the revision petitioners submitted that since the complaint has been dismissed and accused persons have been acquitted by the Court as per Provisions of Section 256 Cr.P.C., there was no scope for filing a second complaint on the same facts. It was strenuously submitted that dismissal of the complaint for default under Section 256 Cr.P.C. entails the acquittal of the accused and once accused has been acquitted the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under Section 378(4) of the Code of Criminal Procedure, on the failure of the petitioner to avail such a remedy, the Court is not to entertain a second complaint on the same facts. 7. The learned advocate appearing for the petitioners strenuously submitted that the only remedy available to the respondent after dismissal of the complaint and acquittal of the accused persons was to prefer appeal. To bring home his submissions, he relied on the decision of the Bombay High Court in the case of Gajanan Parshuram Chopade v. District-Solapur in Criminal Writ Petition No. 1930/2007, wherein, a Division Bench of the Bombay High Court succinctly held that when an order of acquittal is passed under Section 256 Cr.P.C, the only remedy that the complainant would have, is to file an appeal. 8. In that case the question which came up for consideration before the High Court was whether the only remedy available against the order of acquittal under Section 256 Cr.P.C. was to prefer an appeal under Section 378 Cr.P.C. or by way of revision under Section 397 of the Criminal Procedure Code. The Court by referring to some other decisions of the various High Courts came to the finding that the only remedy is by way of appeal. The Himachal Pradesh High Court was also of the same view which has been reported in Crimes (1997) 591 in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, wherein, the Court held that once an accused has been acquitted the law provides a remedy by way of an appeal against the order of acquittal. 9. The Himachal Pradesh High Court was also of the same view which has been reported in Crimes (1997) 591 in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, wherein, the Court held that once an accused has been acquitted the law provides a remedy by way of an appeal against the order of acquittal. 9. Learned advocate appearing on behalf of the respondent No. 1 submitted by referring to the judgment of the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 AIR 876 that second complaint is maintainable. I have gone through the judgment of the Hon'ble Supreme Court in the aforesaid case. The Supreme Court held that in exceptional circumstances second complaint can be entertained but the observation was given in that case while discussing the Provisions of Sections 200, 202, 203, 204 of the Criminal Procedure Code. In that case the question which came up for consideration before the Court was whether second complaint can be entertained after dismissal of the first complaint under Section 203 of the Cr.P.C. The Apex Court held that in exceptional circumstances second complaint on the same facts is permissible. 10. The ratio of the Pramath Nath Taluqdar (supra) is not applicable in this case in view of the fact that the ratio was laid down while considering a complaint dismissed under Section 203 Cr.P.C. In the case in hand, the learned Magistrate not only dismissed the complaint for default of the complainant but also acquitted the accused and when the order of acquittal has been passed there is no scope for entertaining a second complaint on the same facts by the complainant. No doubt, the dismissal of the complaint was not on merit but for default of the complainant but the accused persons were acquitted of the offences and as such the only remedy available to the respondent complainant was to prefer appeal against the order of acquittal. It is also impermissible for the Magistrate to recall the order passed by him. 11. For the aforesaid reasons and considering Sections 256 and 378 of the Code of Criminal Procedure, I am of the view that when an order of acquittal has been passed under Section 256 Cr.P.C., the only remedy complainant would have, to file an appeal. The second complaint on the same facts is not maintainable. 12. 11. For the aforesaid reasons and considering Sections 256 and 378 of the Code of Criminal Procedure, I am of the view that when an order of acquittal has been passed under Section 256 Cr.P.C., the only remedy complainant would have, to file an appeal. The second complaint on the same facts is not maintainable. 12. Consequently, the order dated 03.01.2005 passed by the learned Judicial Magistrate First Class, Silchar in C.R. Case No. 422/2003 is liable to be set aside and quashed which I accordingly do. Send down the records along with copy of the judgment for information and necessary action.