1969 P (PLP)

This is a reference under section 438 of the Code of Criminal Procedure made by the Additional Sessions Judge, Comilla recommending to set aside an order dated 1‑9‑66 passed by Mr. A. H. Khan, Sub‑Divisional Magistrate Brahmanbaria issuing process against the accused‑opposite‑parties under section 379, P. P. C. The short facts are that on 28‑6‑66 the complainant‑petitioner lodged a complaint before the Sub‑Divisional Magistrate Brahmanbaria alleging that the accused‑opposite‑parties and other had cut and taken away his ripe paddy worth Rs. 500 grown by him in his Plot Nos. 5799 and 5800. The learned Sub -Divisional Magistrate took cognizance of the case, examined the complainant and then referred the matter to Mr. A. B. Q. Islam, Magistrate 2nd Class for enquiry and report. On 30‑8‑66 the enquiring Magistrate returned it to the Sub‑Divisional Magistrate with an endorsement that the complainant was absent and no enquiry was possible. The learned Sub‑Divisional Magistrate on an off‑date dismissed the said complaint by his order dated 1‑9‑66 "Complaintant absent. Seen report of enquiring Magistrate. The complaint is dismissed under section 203, Cr. P. C." The complainant on the same date i.e. on 1‑9‑66 filed a second complaint before the Sub‑Divisional Magistrate adding some new facts and new names of the accused. The learned Magistrate examined the complainant under section 200, Cr. P. C. and issued process against the accused‑opposite‑parties under section 379, P. P. C. All the accused appeared and thereafter the case was transferred to another Magistrate for disposal. At this state the accused moved the learned Sessions Judge under section 438, Cr. P. C. praying to refer the matter to the High Court on the ground inter alia that the first complaint having been dismissed the second complaint is not maintainable and the learned Magistrate has illegally issued process under section 379, P. P. C. against the accused. The learned Additional Sessions Judge after hearing the parties has referred the matter to ‑this Court with a recommendation to set aside the Magistrate's order dated 1‑9‑66 in Case No. 2853‑C/66 and in doing so, the learned Judge observed as follows: "There is no scope for lodging fresh complaint on the self same matter. It is unfortunate that cognizance was taken on the subsequent complaint even though there was clear mention on it about the fact of the previous complaint. The proceeding in Case No. 2853‑C/66, being entirely illegal, is liable to be quashed." Hence a question arises in the case as to whether a second complaint is competent after dismissal of the original complaint under section 203, Cr. P. C. on the self same occurrence. Before dealing with the question, let me first turn to the order of dismissal of the first complaint dated 1‑9‑

66. It appears from the order sheet of Case No. 2158 of 1966 that the learned Sub‑Divisional Magistrate, after taking cognizance of the case and examining the complainant under section 200, Cr. P. C. referred the matter to another Magistrate for judicial enquiry under section 202, Cr. P. C. to ascertain the truth or falsehood of the complaint. But unfortunately the enquiring Magistrate instead of holding any enquiry returned the case to the Sub-Divisional Magistrate with a note that the complainant was absent and no enquiry was possible. Now the question is can the Sub-Divisional Magistrate dismiss the complaint under section 203, Cr. P. C. without getting the result of investigation or enquiry directed by him under section 202, Cr. P. C. Under section 203, Cr. P. C. the Magistrate can dismiss a complaint by writing his reasons briefly but only after considering the statements on oath of the complainant and the result of the investigation or enquiry if any conducted under section 202 of the Code. The dismissal of a complaint under section 203, Cr. P. C. depends upon consideration of the statement on oath of the complainant and the result of investigation or enquiry in any held under section 202, Cr. P. C. The statement on oath of the complainant is already on record but the result of the in vestigation or enquiry is still awaiting. The learned Sub‑Divisional' Magistrate kept his decision as to the issuance of process pending, till arrival of the enquiry report. But there being no enquiry or report, how can he be satisfied that it is not a fit case for issuance of process or how can the Magistrate dismiss the complaint under section 203 before the arrival of the enquiry report if the Magistrate taking the cognizance of the case and examining the complainant, before issuing the process referred to in section 204 of the Code, orders a preliminary enquiry under section 202, Cr. P. C. then in my opinion, he cannot dismiss the complaint under section 203, Cr. P. C. unless the result of the investigation or inquiry is submitted to him. The position would, however, be otherwise, if the complainant is grossly negligent to take steps before the enquiring Magistrate. The inquiring authority should give ample opportunity to the complainant to prove his allegations but in spite of reasonable opportunity, if he declines to appear before the enquiring officer and neglects to adduce evidence and in that case if the enquiring officer makes a report that no evidence has been produced to prove the allegations, then the Magistrate taking cognizance may' decide as to whether the complaint should be dismissed for lack' of evidence remitted back for enquiry or investigation. But in a case where the Magistrate or the person to whom the enquiry is entrusted does not enquire into the facts leading to the commission of the offence at all, but makes his report to the Magistrate taking cognizance of the case that the enquiry was; not possible due to the absence of the complainant, then the Magistrate taking cognizance of the case cannot be said in the eye of law to have "the result of investigation or enquiry before him" in order to entitle him to dismiss the complaint under section 203, Cr. P. C. That being the position, the dismissal of the first complaint in the absence of the enquiry report is not at all justified in law. In this connection, the case of Fateh Sher v. Khan Yasin Khan and others (P L D 1959 Lah. 660) may be referred to. Now coming to the question as to the competency of the second complaint, it may be pointed out that a dismissal of a complaint under section 203, Cr. P. C. is a dismissal in limine. The accused is not at all in the picture at this stage. Such a dismissal does not mean that the allegations against the accused are false and for that the accused are entitled to a discharge or acquittal. The provisions of section 403, Cr. P. C. are not attracted to such a case. No process having been issued against the accused and no trial having commenced on the complaint, section 403, Cr. P. C. cannot apply nor debar the Court from taking cognizance of the case afresh. To bar a subsequent trial under section 403, Cr. P. C. there must be a previous proceeding and discharge or a previous trial and acquittal of the' accused. If section 403, Cr. P. C. does not apply, I find no reason why the fresh complaint will not be competent after the dismissal of the first one. In my opinion, in the given facts and circumstances of the case a second complaint is entertainable on the self‑same facts. The second complaint having disclosed some new facts, the Magistrate has jurisdiction to receive the same. In this connection, the cases reported in P L D 1960 Azad J & K 24, P L D 1961 Azad J & K 12, A I R 1961 Cal. 461 and A I R 1962 Pat. 316 may be referred to. The cases reported in P L D 1962 S C 242 and 15 D L R 55 (S C) do not debar a fresh prosecution, rather support it. The Supreme Court of Pakistan in those cases, if I am permitted to say so, has unequivocally held that the cognizance may be taken on the basis of a fresh complaint if there was no decision in the matter on merits after recording of evidence. The Supreme Court of India in the case of Pramatha Nath Talukder and another v. Saroj Ranjan Sarkar (A I R 1962 S C 876) has observed as follows :‑ "An order of dismissal under section 203, Criminal Procedure Code, is 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 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 complaint upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into." I agree with the principles enunciated above. In the instant case, as indicated earlier the order of dismissal of the first complaint is manifestly wrong and unjust and consequently there has been a manifest miscarriage of justice in the matter and in such circumstances, the second complaint is quite competent in law. In addition the second complaint having introduced some new facts and materials, as stated in the Reference, the learned Magistrate was perfectly justified in taking cognizance of the case and issuing process against the accused. For the reasons stated above, I cannot accept the Reference and it is accordingly rejected. The prosecution case will proceed as usual. None of the Advocates representing the parties having appeared before me during the hearing of the case, Mr. Daliluddin Ahmed, Advocate who was present in Court room, was requested to assist the Court and the learned Advocate appeared as amicus curiae in the matter. Reference rejected.