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Judgment
Rajesh Tandon, J.—Heard Sri B.S. Adhikari, counsel for the revisionist, Mr. Neeraj Upreti, counsel for the respondent No. 3 and A.G.A. for the State.
By the present criminal revision, the revisionist has challenged the order dated 06.11.2004 passed by Special Judicial Magistrate-Pithoragarh in Criminal Case No. 82/2003 u/s 323/504 I.P.C. Order dated 6th November, 2006 is quoted below:
Called on. Non present for the complainant It is 12 noon. Dismissed on default of the complainant.
Briefly stated, a complaint was filed by the revisionist u/s 323 and 504 of the Indian Penal Code stating therein that the cognizance may be taken of the incident, which took place on 25th July, 2001 at about 6:45 AM for the report was also lodged with regard to using filthy language as well as Maarpeet.
Since the complaint has been dismissed in default and has not been decided on merits, therefore, it will be open for the applicant to file another complaint.
In Jatinder Singh Vs. Ranjit Kaur, , similar controversy came for interpretation before the Apex Court and the Apex Court after relying upon Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, has held as under:
if the dismissal of the complaint was not on merit but on default of the complaint to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint u/s 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was u/s 203. The controversy was settled by this Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . A majority of Judges of the three Judge Bench held thus (Para 48):
An order of dismissal u/s 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.
S.K. Das, J. (as he then was) while dissenting from the said majority view had taken the stand that right of a complainant to file a second complaint would not be inhibited even by such considerations. But at any rate the majority view is that the second complaint would be maintainable if the dismissal of the first complaint was not on merits.
Since admittedly, the present complaint has not been dismissed on merits and as such in accordance with the dictum of the Apex Court, it will be open for the revisionist to file second complaint and as such there is no question of setting aside the aforesaid order.
Subject to aforesaid observations, criminal revision is disposed of on the ground of alternative remedy available with the applicant to file second complaint.