Karnataka High Court
Tulsamma vs Jagannath And Ors. on 2 August, 2004
Equivalent citations: 2004CRILJ4272, ILR2004KAR4128, 2004(6)KARLJ43, 2004 CRI. L. J. 4272, 2004 AIR - KANT. H. C. R. 3111, (2004) 6 KANT LJ 43, 2001 (6) KANTLJ 43, (2004) ILR (KANT) (3) 4128, (2004) 4 CRIMES 252, (2004) 4 ALLCRILR 898
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
JUDGMENT Mohan Shantanagoudar, J.
1. By the impugned order, the Court below has dismissed the complaint filed by the petitioner as not maintainable.
2. The records disclose that the petitioner herein had, lodged the complaint (hereinafter referred to as first complaint) under Section 200 Cr.P.C. before the Court below, alleging offences punishable under Sections 494 and 495 of IPC against the respondents, inter alia contending that the 1st respondent had married the 2nd respondent herein during the subsistence of first marriage between the petitioner and the 1st respondent herein. The said complaint was registered as CC .No.844/ 1995 (P.C.No.13/1995). During the pendency of the trial in CC.No.844/ 1995, the petitioner - the complainant remained absent on the date of hearing and consequently the said complaint was dismissed for non- prosecution on 04.12.2000. The complainant made an application for recalling the order of dismissal for default. That application was also dismissed.
However, the petitioner filed one more private complaint subsequently (hereinafter called as second complaint) alleging similar facts relating to the offence of bigamy as were alleged in the first complaint. The Second complaint is registered as P.C. No.77/2001. The Trial Court by the impugned order dated 03.12.2003 dismissed the said second complaint as not maintainable in view of the order of dismissal of earlier complaint, for non-prosecution.
3. The respondents though served with notices have remained absent.
4. Learned Counsel for the petitioner submits that the impugned order is bad in the eye of law, inasmuch as there is no bar for filing the second complaint on the same allegations, particularly when manifest injustice is caused to the complainant; that as the first complaint was not decided on merits, her grievances have remained unsolved. On these grounds, he prays for setting aside the impugned order.
Heard the learned Counsel for the petitioner and perused the records.
5. The allegations made in the second complaint disclose that the petitioner herein is the first wife of the 1st respondent. During the subsistence of the said marriage between the petitioner and the 1st respondent, the 1st respondent has married the 2nd respondent on 21.06.1995 at Bidar, in the presence of other accused. Earlier to the said second marriage, the petitioner herein filed O.S.No. 10/1995 before the Munsiff Court, Humnabad and obtained ex-parte order of temporary injunction restraining the 1st respondent from marrying any other girl during the subsistence of first marriage between the petitioner and the 1st respondent. By disobeying the order of injunction, the 1st respondent married the 2nd respondent.
6. It is needless to mention that the Magistrate had no jurisdiction to recall the order dated 04.12.2000 passed in C.C. NO.844 of 1995. There is absolutely no provision in the Code of Criminal Procedure empowering a Magistrate to review or recall the order passed by him. The Code of Criminal Procedure does contain provision for inherent powers namely Section-482, which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal Courts have no inherent powers. Under these circumstances, the learned Magistrate had no jurisdiction to recall the order of dismissing the complaint. Thus, rightly, the said order dismissing the first complaint for default was not recalled by the Magistrate.
7. The order of dismissal of complaint either on merits or for non prosecution, is however, not a bar for entertaining second complaint on the same facts but it will be entertained only in exceptional circumstances viz., where there is a manifest error or manifest miscarriage of justice in the previous order or when the fresh evidence is forthcoming which, with reasonable diligence could not have been brought on record in the previous proceedings.
8. In the present case, the first respondent herein has married the 2nd respondent during the subsistence of first marriage, that too, by disobeying the ad interim order of injunction issued by the competent Civil Court. Under the facts and circumstances of this case, if the petitioner is not given another opportunity to pursue her grievances, there will be manifest miscarriage of justice, as the decision on first complaint was not upon consideration of her case on merits. But the complaint was dismissed for default. Thus, to prevent manifest miscarriage of justice that could have been caused to the petitioner herein, the Court below should have entertained the second complaint filed by the petitioner herein.
9. In this connection, a reference may be made to the Judgment of the Apex Court in the case of MAHESH CHAND v. B. JANARDHAN REDDY AND ANOTHER, 2002 AIR SCW 5385, where in it is observed thus;
"The second complaint would not be completely barred. There is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 203 Cr. P.C. may take cognizance of an offence and issue process if there is sufficient grounds for proceeding. Second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced."
The aforesaid dictum is aptly applicable to the facts of this case.
10. However, I notice that no case is made out as against respondents-3 to 24 herein in as much as the record does not disclose any material relating to abatement on their part in the alleged second marriage and consequently the complaint as against respondents- 3 to 24 herein is liable to be dismissed on merits.
11. In view of above, following order is passed: -
(a) The order dated 03.12.2003 passed by the Court below in P.C.No.77/2001 in so far as it relates to respondents-1 and 2 are concerned is set aside. Consequently, P.C.No.77/2001 filed by the petitioner herein against respondents-1 and 2 herein is restored to the file of the Court below.
b) The private complaint No.77/2001 as against respondents-3 to 24 is dismissed on merits as no case is made out against them.
Accordingly, this petition is allowed in part.