Smt. Vimla Keshri vs Special Judge (E.C. Act)/ Additional Sessions Judge

K.N. Ojha, J.—This writ petition has been filed under Article 226 of the Constitution of India for issue of a writ order or direction in the nature of certiorari for quashing the impugned order dated 17.12.2003 passed by Special Judge (E. C. Act)/Additional Sessions Judge, Jaunpur, (Annexure-1 to the writ petition) and order dated 4.9.1997, passed by Chief Judicial Magistrate, I, Jaunpur, (Annexure-2 to the petition).

Heard Sri Vijay Kumar Rai, learned Counsel for the Petitioner and learned A.G.A.

Notice was sent to the O. P. No. 3, Gajendra Bhatnagar. Sri S. S. Yadav and Sri R. S. Yadav who filed their power for him, but no argument was advanced by them.

According to Smt. Vimla Keshri, Petitioner, O.P. No. 3, Gajendra Bhatnagar, filed a complaint on 5.7.1990 against the Petitioner under Sections 323, 504 and 506, I.P.C. in the Court of Additional Chief Judicial Magistrate, I, Jaunpur, for alleged incident dated 28.12.1988 (which is at Annexure-3 to the petition). Statement of O.P. No. 3 Gajendra Bhatnagar recorded u/s 200, Cr. P.C. is at Annexure-4 to the petition. Gajendra Bhatnagar examined P.W. 1 Sarjoo Prasad u/s 202, Cr. P.C. The Additional Chief Judicial Magistrate after perusal of evidence under Sections 200 and 202, Cr. P.C. dismissed the complaint filed by Respondent No. 3, Gajendra Bhatnagar, holding that Gajendra Bhatnagar had himself beaten the Petitioner Smt. Vimla Keshari and Smt. Vimla Keshari had also beaten Gajendra Bhatnagar. Inquiry was held by the Sub-Divisional Magistrate to this effect. The complaint being dismissed, Gajendra Bhatnagar filed Revision No. 151 of 1991 against the order dated 25.7.1991, passed by A.C.J.M. I, Jaunpur. The Sessions Judge allowed the revision on 3.1.1992 without hearing the Petitioner. The order dated 3.1.1992 passed by Sessions Judge is at Annexure-6 to the petition. After the revision was allowed a case was again registered before the Additional Chief Judicial Magistrate, Jaunpur. The Additional Chief Judicial Magistrate v. considered the matter and dismissed the complaint on 11.2.1994 on the ground that in spite of sufficient opportunity being given no evidence was adduced by Gajendra Bhatnagar and therefore, Smt. Vimla Keshari was discharged from Sections 323, 504 and 506, I.P.C. A true copy of the discharge order is at Annexure-7 to the petition. Gajendra Bhatnagar again filed Revision No. 99 of 1994 and the Additional Sessions Judge III, Jaunpur, dismissed the revision holding that the order passed by the Additional Chief Judicial Magistrate V, dated 11.2.1994 was valid. The order of the Additional Sessions Judge III, is at Annexure-8 to the petition. Thereafter Gajendra Bhatnagar lodged second complaint on 27.8.1996 on the same facts mentioned in the complaint dated 5.7.1990 under Sections 323, 504 and 506, I.P.C., a true copy of which is at Annexure-9 to the writ petition. Additional Chief Judicial Magistrate directed to proceed with the case without caring for earlier order dismissing the complaint for want of evidence. The order passed by the Additional Chief Judicial Magistrate v. is at Annexure-2 to the petition. The Petitioner filed Revision No. 45 of 1998 to set aside the order dated 4.9.1997, but the Special (E. C. Act)/Additional Sessions Judge, Jaunpur, dismissed the revision of the Petitioner vide order dated 17.12.2003, which is at Annexure-1 to the writ petition.

It is alleged that Smt. Vimla Keshari was working as assistant teacher in primary school, Mandiyahun, Jaunpur. The Respondent Gajendra Bhatnagar was also working on the same post in the same school. It is submitted that once the complaint was dismissed u/s 245(2), Cr. P.C. and Smt. Vimla Keshari was discharged from the offence, how it is not open to prosecute her again in respect of the same offence. It is further alleged that Smt. Vimla Keshari also made complaint against the Respondent Gajendra Bhatnagar. Sub-Divisional Magistrate, K. D. Ram, made inquiry and found that both had beaten each other, therefore, no action was required.

The report dated 27.1.1989, was submitted by K. D. Ram, Sub-Divisional Magistrate, Mandiyahun, to the District Magistrate, Jaunpur, to the effect that examination of students was to be held in Primary School, Mandiyahun, on 28.12.1988. Gajendra Bhatnagar made arrangement for sitting of students in one line irrespective of boy and girl students, while Smt. Vimla Keshari, who was a teacher in the same school insisted that girl students should appear in one line and boy students had to appear in another line. She insisted that there should be separate lines for boys and girls students. Dispute took place and consequently both made complaint against each other. On inquiry the Sub-Divisional Magistrate held that this occurrence had brought disrepute to the school and therefore, he recommended for transfer of both the teachers from the school so that peaceful atmosphere in the school could be maintained.

A perusal of statement of Gajendra Bhatnagar under 200, Cr. P.C. shows that according to him Smt. Vimla Keshari had beaten him with her sandle but there was no external injury, hence, no medical examination was got done. Since other teachers had pursued these persons to resolve their dispute, therefore, no F.I.R. was lodged by him against Smt. Vimla Keshari.

The only question of law involved in this case is as to whether a second complaint is maintainable if an accused has been discharged u/s 245(1) of Cr. P.C.

Section 245(1) of Cr. P.C. contemplates that

if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

Placing reliance on Hafij Noorul Hasan v. State of U.P. (27)1990 ACC 112, it was held by both the courts below that second complaint was maintainable even though the accused was discharged u/s 245, Cr. P.C. after appreciating the evidence. In the above mentioned cited case it was held by this Court that if the first complaint was dismissed because of non-production of evidence, the second complaint was maintainable.

The Petitioner has cited Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, , in which it has been laid down by Hon''ble the Apex Court that a second complaint is not barred 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 was further held that 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.

Now question arises as to whether it was a fit case to entertain the second complaint or not. The occurrence is alleged to have taken place in 1988. About 15 years have passed away. According to Respondent Gajendra Bhatnagar external injuries were not caused on his body, therefore, medical examination was not got done. F.I.R. was also not lodged. There was complaint of the Petitioner also that Gajendra Bhatnagar had misbehaved with her. In inquiry Sub-Divisional Magistrate found that both were liable for misconduct and indiscipline in the school and he sent report to the District Magistrate, Jaunpur, for transfer of both the teachers from the school. This being the position, when the second complaint was dismissed after giving proper opportunity to adduce evidence, this case does not fall within the ambit of "exceptional circumstances" as laid down in the aforementioned Parmatha Nath Talukdar''s case. Therefore, both the impugned orders are contrary to the spirit of Section 245, Cr. P.C. as well as the law laid down by Hon''ble the Supreme Court in the case of Parmatha Nath Talukdar. Therefore, both the impugned orders deserve to be set aside.

Writ petition is allowed and both the impugned orders dated 4.9.1997 and 17.12.2003, passed by Additional Chief Judicial Magistrate V, Jaunpur, and Additional Sessions Judge, Jaunpur, respectively, are quashed as the second complaint filed by Respondent Gajendra Bhatnagar is not maintainable.