Patna High Court
Bindeshwari Prasad Singh vs Kali Singh on 28 July, 1975
Equivalent citations: 1976CRILJ1515
ORDER Muneshwari Sahay, J.
1. This application is directed against an order dated the 3rd May 1972, passed by the acting Subdivisional Magistrate, Monghyr In case No. 116C of 1966, by which the learned Magistrate took cognizance against the petitioners for offences under Sections 419, 420 and 466 of the Indian Penal Code.
2. The case against the petitioner was instituted on the complaint filed by the opposite party on the 21st February 1966. It is really unfortunate that even after nine years from the filing of the complaint, no progress could be made in the same for one reason or the other. After the complainant was examined on solemn affirmation, the complaint was sent to Shri A. K. Prasad, Sub Deputy Collector for enquiry and report. Shri Prasad could not hold the enquiry as he was transferred from Monghyr. Thereafter the enquiry was recalled from him and it was entrusted to Shri K. P. Sinha, Deputy Magistrate on the 15-3-1967. Although the complainant examined some witnesses before Shri Sinha, he did not submit any report of enquiry and on the 23rd November 1968, the acting Subdivi-sional Magistrate passed the following order dismissing the complaint;
Complainant is absenting since long. Enquiry report also not received in spite of several reminders. The complainant is not having interest in expediting the enquiry. Enquiry recalled. The complaint is dismissed now.
Only a few days later (i. e. 7th December 1968), the opposite party filed a petition before the Subdivisional Magistrate in which he stated that Shri K. P. Sinha to whom the enquiry had been entrusted had already examined all the witnesses of the opposite party and final hearing had been done in the enquiry. He, accordingly, prayed that the order of dismissal be recalled and cognizance be taken against the petitioner. Although the learned Subdivisional Magistrate did not pass any formal order recalling the order of dismissal, he ordered to call for the record of the enquiry. The record of enquiry was not produced before him and on the 21st June 1969, the enquiry was entrusted to one Shri S. N. Dubey. Shri Dubey reported on the 30th October 1969 that since the complainant had not cared to appear before him or to adduce any evidence before him on the ground that Shri K. P. Sinha had already completed the enquiry, he wag returning the enquiry to the Subdivisional Magistrate. The order of the Subdivisional Magistrate dated the 9th December 1970 shows that Shri K. P. Sinha had informed the Sub-divisional Magistrate that although some witnesses were examined before him, he had not submitted any report of enquiry. The learned Subdivisional Magistrate observed in his order that although no formal order had been passed recalling the dismissal of the complaint, the order of dismissal should be deemed to have been recalled. He, accordingly, entrusted the enquiry on the 9th December, 1970 to Shri A. R. Ansari, Sub Deputy Collector who reported on 14-1-1971 that a prima facie case had been made out against the petitioner. In the meantime the opposite party filed a petition before the Sub-divisional Magistrate to call for the record of the enquiry from Shri K. P. Sinha. The record of enquiry was not produced in spite of reminders and on the 3rd May, 1972, the learned Subdivisional Magistrate agreeing with the report of Shri Ansari, took cognizance against the petitioner, as mentioned earlier.
3. Shri B. P. Sinha, learned Counsel appearing on behalf of the petitioner has raised only one point in support of the application. He has contended that after the complaint had been dismissed under Section 203 of the Code of Criminal Procedure, it was not competent for the Subdivisional Magistrate to have revived the same. Reliance for this proposition is placed on a decision of this Court in Criminal Revn. No. 1847 of 1967 (Dhandhilal Pandey v. The State of Bihar) disposed of on the 17th October 1968 (Pat). His Lordship G. N. Prasad, J. who heard the application took note of an earlier decision of this Court in the case of Ram Narayan Choubey v. Panachand Jain AIR 1949 Pat 256 : 50 Cri LJ 524, in which it was held that the complaint which had been dismissed could be revived without filing a fresh complaint. His Lordship, however, pointed out that this view was not approved by the Supreme Court in the case of Pramatha Nath Talukdar v. Saroi Ranjan Sarkar . Relying on the decision of the Supreme Court and a decision of the Allahabad High Court in the case of Bhagwan Sahai v. Moti Lal his Lordship held that the complaint which had already been dismissed for default could not be revived by recalling the order of dismissal.
4. Learned Counsel for the opposite party, however, contends that the decision of the Supreme Court in Pramatha Nath Talukdar's case (1962-1 Cri LJ 770) (SC) (supra), does not support the view taken in Criminal Revision No. 1847 of 1967 (Pat). I have gone through this decision and I am inclined to think that the question as to whether a complaint which had been dismissed could be revived was never considered by the Supreme Court, in that case. The Supreme Court was considering the question as to whether a fresh complaint was maintainable after the dismissal of the first complaint and it was in this context that the Supreme Court observed, 'it cannot be said to be in the interest of justice that after a decision has been taken 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'. Earlier in the same paragraph (paragraph 48), the Supreme Court said that an order of dismissal under Section 203 of the Code of Criminal Procedure was not a bar to the entertainment of a second complaint on the same facts, but it would be entertained only in exceptional circumstances. In Ram Narain Chaubey's case (1949-50 Cri LJ 524) (Pat) (supra) a Division Bench of this Court has held that the Magistrate has jurisdiction to revive the complaint dismissed under Section 203 of the Code of Criminal Procedure. It is true that this observation was made as an obiter in this case. Nevertheless the view expressed by their Lordships was clear and free from any reservation. I may point out that as far back as in the year 1929, a Division Bench of this Court had taken the same view in the case of Janakdhari Singh v. Emperor AIR 1929 Pat 469. His Lordship Wort, J., observed "in my judgment, quite apart from any order of the revisional Court, the Magistrate had jurisdiction to proceed in spite of the fact that he had already dismissed the complaint under Section 203 of the Code", The same view was taken by his Lordship Raj Kishore Prasad, J., in the case of Prithvi Bhagat v. Birju Sada 1962 BLJR 221 : 1962-2 Cri LJ 206. In all these cases reliance was placed on a Full Bench decision of the Calcutta High Court (1909) ILR 36 Cal 415 : 9 Cri LJ 563.
5. Therefore, having regard to the decisions of the Division Bench in two cases of this Court AIR 1949 Pat 256 : 50 Cri LJ 524 and AIR 1929 Pat 469, the view taken in the case of Dhandhilal Pandey v. The State of Bihar Criminal Revision No. 1847 of 1967 (Pat), if I may say so with utmost respect, cannot be accepted. On the facts and circumstances before me, I have no hesitation in saying that although no formal order recalling the order of dismissal of the complaint was passed, the learned Subdivi-sional Magistrate had proceeded on the footing that the order of dismissal stood recalled. I am satisfied that the Subdivi-sional Magistrate has not committed any illegality in taking cognizance against the petitioner in this case and, therefore, no interference is called for in the impugned order. The application is, therefore, dismissed.