This revision application filed under section 435/439, Cr.P.C., read with section 561-A, Cr.P.C. Has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. On 15-6-1986 the respondent No.1 lodged F.I.R. Against the applicants at Mirpur Mathelo Police Station (Crime No.65 of 1986), for the offence under section 147/148/307/504/114/149, P.P.C. On the same day applicant Atta Muhammad lodged counter-F.I.R. (Crime No. 66 of 1986) at the same police station for the offence under section 147/148/340/342/307/506(2)/447/114/149, P.P.C The report lodged by respondent No.1 was disposed of by the concerned police in `B' class as false.
Consequently the respondent No.1 filed a direct complaint against the applicants for the offence under section 147/148/506(2)/ 397/114/149, P.P.C., which was received by Vth Additional Sessions Judge, Sukkur, who after holding a preliminary inquiry dismissed it under section 203, Cr.P.C. Vide order, dated 23-10-1986. The respondent No.1 challenged this order before the High Court in Criminal Revision No.13 of 1987, which was, however, withdrawn on 21-4-1987 with permission to refilled the same. The respondent No.1, instead of filing a fresh revision application filed a direct complaint against the applicants and others, which was brought on regular file by the same Additional Sessions Judge vide order, dated 13-10-1987. This order is the subject-matter of the present revision application.
3. I have heard Mr. Muhammad Daud Baluch, learned counsel for applicants, Mr. Mallick Ghulam Kadir, learned counsel for respondent No.1, and Mr. Zawar Hussain Jafferi, learned AA.-G. For State.
The learned A.A.-G. Has supported the impugned order.
4. It is an established position of law that an order of dismissal of complaint under section 203, Cr.P.C. Is no bar to the entertainment of second complaint on the same facts. Neither section 369, Cr.P.C. Nor section 403 Cr.P.C. Operates as a bar to second complaint. There is ample case-law available on this subject which lends support to this view, few of them may be cited as follows:
(i) Bulchan Tahilram v. Ghandhoomal Ramrakhiamal AIR 1914 Sindh 44.
(ii) Rambharos and others v. Baban AIR 1914 All. 79.
(i.e) PampalG Subbareddi and others v. Chauduboyigari Kamal Saib A I R1916 Mad. 887 (2).
(iv) Jai Kishan and others v. Kalla AIR 1920 All. 8.
(v) Allah Ditta v. Karam Bakhsh AIR 1930 Lah. 879.
(vi) Ponnuswa mi Goundan and another v. Emperor AIR 1932 Mad. 369.
(vii) Muhammad Din and others v. Hussain AIR 1934 Lah. 435.
(viii) Kunji LAI v. Emperor AIR 1935 All. 60.
(ix) Mt. Harbai Ratna v. Raya Premji and another AIR 1939 Sindh 193.
(x) Abdul Ghani Khan son of Aziz Khan v. Rokhan Shah son of Munawar Shah and another AIR 1942 Pesh. 24.
(xi) Subramania Kandar v. Ramaswa mi Kandar AIR 1949 Madras 154.
(xii) Chitto Adhikari v. Vidya Bhushan Sharma AIR 1952 All. 455.
(xiii) Kuppagiri Atchamma and others v. JAW Reddi Koti Reddi AIR 1955 Andhra 197.
(xiv) Abdullah v. Fazal Din and others PLD 1960 Azad J & K 24.
(xv) Muhammad Latif v. Shah Nawaz and others PLD 1961 Azad J&K 12.
(xvi) Prithvi Bhagat and another v. Birju Sada AIR 1962 Pat. 316.
(xvii) Pramatha Nath Talukdar v. Saroi Ranjan Sarkar AIR 1962 SC 876.
(xviii) Gulab Khan v. Fazal Hussain and another 1968 P Cr. L J 730.
(xix) Muslim Miah v. Munsar Ali Haji and 6 others 1969 P Cr. LJ 849.
5. On a careful examination of the above, cited judgments, the following points emerge:
(a) An order of dismissal of a complaint under section 203, Cr.P.C. Is no bar for the entertainment of a second complaint on the same facts.
(b) The dismissal of a complaint under section 203, Cr.P.C. Is a dismissal in limine and the provisions of section 369, Cr.P.C. Or 403, Cr.P.C. Are not attracted in such an exigency.
(c) The entertainment of second complaint where the first complaint is', dismissed for non- prosecution is competent without any pre-conditions.
(d) As a rule of necessary caution the second complaint, where the first is dismissed under section 203, Cr.P.C. After inquiry, can be entertained only in exceptional circumstances, e.g. Where the previous order was passed on an incomplete record, etc.
(e) A second complaint can be entertained even if the order of dismissal,, under section 203 Cr.P.C.
May not have been set aside by a Court of revision.
(f) Where the first complaint is dismissed after considering the evidence and the second complaint is filed on the basis of the same evidence, it will amount to abuse of the process of Court.
6. Although a second complaint can be entertained after the earlier one is dismissed under section 203, Cr.P.C., but there should be exceptional circumstances to do so. The observations made by Bhide, J. In the case of Allah Ditta v. Karam Bakhsh reported in I R 1930 Lah. 879 are relevant in this behalf, which are reproduced below: But although a previous dismissal under section 203, Cr.P.C. May not be legally a bar to the institution of a fresh complaint, it would be only in exceptional circumstances that a second complaint would be entertained on the same facts as pointed out in Emperor v. Kiri 19 Cr. L J 364, e.g. Where the previous order was passed on an incomplete record or where the previous order was manifestly absurd or foolish.
7. The Supreme Court of India in the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 examined this point elaborately and finally observed as follows: "An order of dismissal under section 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."
8. In Muslim Miah v. Munsar Ali Haji and 6 others reported in 1969 PCr.LJ 849 Abdul Hakim, J.
Observed as under: "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."
9. In the present case the injured person and the Medical Officer who had attended the injured were not examined and it was mainly due to this reason that the earlier complaint was dismissed.
The respondent No.1 had produced additional evidence before the Additional Sessions Judge thereby making out a prima facie case against the applicants and having regard to the criteria laid down in the above authorities, no exception can be taken to the impugned order.
10. In view of the observations made above, I see no merit in the present revision application which is accordingly dismissed.