Narsingh and others vs State of U.P.and another

Shri Narayan Shukla, J.—Heard Mr. Dilep Pandy, learned Counsel for the petitioners and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate.

The petitioners have challenged the proceedings of Complaint Case No. 1523 of 2008 on the ground that earlier on the same cause of action the proceeding was initiated through Complaint Case No. 629 of 2007. By means of order dated 16.7.20081st Additional Chief Judicial Magistrate, Raebareli has rejected the complainant'' application for exemption of his appearance. The order dated 16.7.2008 shows that the complainant was absent and the learned Magistrate dismissed the complaint case but it is indicated that it is dismissed under section 245 of the Code of Criminal Procedure; whereas; the power of dismissal is vested with the learned Magistrate under section 249 of the Code. Thus, it appears that he wrongly mentioned section 245 of the Code instead of section 249 of the Code.

Despite dismissal of the complaint case a fresh proceeding has been initiated by the complainant on the fresh complaint which is challenged by the petitioner on the ground that once the complaint case has been dismissed, it is not open for the complainant to initiate a fresh proceeding, whereas fresh complaint is permissible under law as has been held in the judgment of Hon''ble Supreme Court rendered in the case of Mahesh Chand v. B. Janardhan Reddy and another, 2003 (46) ACC 182 (SC), Therefore, I am not inclined to interfere in the proceedings of the Court below. However, keeping in view the fact that complaint was dismissed for want of prosecution and in the earlier complaint the petitioners were already on bail, they shall face trial and their appearance in the present case shall be acknowledged through counsel.

With the aforesaid observation/ direction, the petition is disposed of finally