Hafiz Noorul Hasan and Others vs State of Uttar Pradesh and Another

Palok Basu, J.—Heard Sri Vinod Prasad, learned Counsel for the applicants at length. The magistrate had on an earlier occasion summoned the accused/applicants and then dismissed the complaint u/s 245 Code of Criminal Procedure on the ground that there was no evidence coming forth. After sometime the complainant tiled the second complaint stating therein that on the date on which the dismissal order was passed he could not produce his evidence. The Magistrate has on the second complaint summoned the accused/applicants. Reliance was placed upon the case of Maj. Gen. A.S. Gauraya v. S.N. Thakur 1986 ACR 500. The said case is distinguishable on the facts. The question involved in that case was whether the Magistrate�s Court had inherent powers to restore a complaint once he had dismissed it earlier. Relying upon the earlier decision of Bindeshwari Prasad Singh reported in AIR 1977 SC 1440, their Lordships laid down that such a power was not available with the magistrate.

So far as the question of the Magistrate�s power to entertain and go shead with the filing of the second complaint, reliance was placed by their Lordships on the earlier Supreme Court decision Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . In the said case it has been observed as under :

filing of a second complaint is not the same thing as reviewing a dismissed complaint after re-calling the earlier order of dismissal. The Criminal Procedure Code, does not contain any provision enabling the criminal courts to exercise such an inherent power.

In this view of the matter, it cannot be said that no second complaint could be filed regarding the incident which was the subject matter of the first complaint and which stood dismissed because of the non-production of the evidence on the last date of hearing. Consequently there is no force in this argument of Sri Vinod Prasad.

It was then argued that in the instant case all the Sections were triable as summons case and, therefore, the dismissal of the complaint would amount to an acquittal. The Sections involved in the present complaint are Sections 147/323/427/504/506 IPC. A perusal of the complaint indicates that ingredients of second part of Section 506 IPC are made out and that is punishable with 7 years R.I. Consequently, this complaint has to proceed as warrant trial. This argument, therefore, is also misconceived.

Then it was argued vehemently that in so far as applicants are concerned they are being harassed continuously for last several years. It was brought to the notice of this court that all the applicants had surrendered earlier and were bailed out and presented themselves during trial. It is again argued that if such procedure of harassment is resorted and put up by the complainant, there may not be any end of the prosecution of the accused/ applicants.

In view of the aforesaid argument it is hereby directed that in case the applicants are arrested and brought before the competent Court or surrender before it and make an application for bail, the said bail application shall be disposed of in accordance with law on the day it is moved. It is further directed that in case the applicants make an application for personal exemption u/s 205 Code of Criminal Procedure the court shall decide the said application sympathetically on the day it is moved and the presence of applicants may be taken through counsel appearing on their behalf, unless their presence is mandatorily required under the law. Sri Vinod Prasad Learned Counsel for applicants drew attention of this court to the fact that warrants have been issued by the magistrate. He further makes a statement that all the accused/applicants shall surrender on or before 8-12-1989 in response to the process/summons issued by the Magistrate. In view of the aforesaid argument it is hereby directed that the warrants issued shall not be executed and would remain stayed till 11-4-89.

With the aforesaid observations this application is dismissed.

A certified copy of this order shall be furmished to the Learned Counsel for the applicants on payment of usual charges Whin 24 hours.