Mobile View
Main Search Advanced Search Disclaimer
Cites 35 docs - [View All]
The Indian Penal Code
Section 256 in The Indian Penal Code
Section 203 in The Indian Penal Code
Section 300 in The Indian Penal Code
Section 482 in The Indian Penal Code
Citedby 8 docs - [View All]
Madan Gopal vs Subhash Chander on 9 March, 2009
Gulshan Khanna vs State Of Haryana And Another on 18 August, 2009
M/S Shivalik Filling Station vs State Of Haryana And Another on 10 February, 2012
Sunrise Immigration Consultants ... vs Sh.Jagdish Singh Thakur & Anr on 14 August, 2012
Crm M 25385 Of 2012 vs Naveen Gupta on 11 November, 2013

User Queries
Punjab-Haryana High Court
Jitender Bajaj vs State (U.T. Chandigarh) And Anr. on 25 April, 2005
Equivalent citations: 2005 CriLJ 3136
Author: S K Mittal
Bench: S K Mittal

ORDER

Satish Kumar Mittal, J.

1. This order shall dispose of two petitions i.e. Cri Misc. No. 2066-M of 1992, filed by Jitender Bajaj, Resident Editor, Jan Satta, Chandigarh and Cri. Misc. No. 5686-M of 1992, filed by Pawan Kumar Bansal and Jitender Bajaj, News Correspondent and Resident Editor, respectively, of Jan Satta, Chandigarh.

2. Both these petitions have been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing of second criminal complaints, filed by respondent No. 2, in which the petitioners have been summoned to face trial under Section 500, IPC on the same set of facts and allegations, as were levelled in the first complaints, which were dismissed for non-appearance of the complainants and their counsel under Section 256, Cr. P.C. and the petitioners were acquitted.

3. The question of law involved in both these petitions is :

Whether the second complaint in a summons case filed on the same set of facts and allegations is maintainable, when the first complaint was dismissed for non-appearance of the complainant and his counsel under Section 256, Cr. P.C. when the accused was present in the Court and the Judicial Magistrate decided not to adjourn the hearing of the case to some other day and acquitted the accused, particularly when the said order of dismissal of the complaint and acquittal of the accused has become final as the same was not challenged by the complainant either in appeal/revision or under Section 482 of the Code ?"

4. Before considering the aforesaid question, it is necessary to give certain facts of this case, which are being taken from Cri. Misc. No. 2066-M of 1992. On 3-2-1988, respondent No. 2 filed a complaint (Annexure P-1) against the petitioner under Sections 499/500/501/502 read with Section 34, I.P.C., alleging therein that on 8-12-1987, a news item was published in the daily news paper "Jan Satta" in which it was alleged that respondent No. 1 and Prof. Sampa, Singh, Minister, Haryana, had gone to Shimla on 20-9-1987 and stayed there for three days, where they met some colonizers of Gurgaon and supporters of Bhajan Lal and had struck a deal in which crores of rupees had changed hands. On the said complaint, the petitioner was summoned under Section 500, IPC by Chief Judicial Magistrate, Chandigarh, after considering the preliminary evidence led by the complainant. On 11-7-1988, the petitioner (accused) appeared before the Judicial Magistrate and furnished his bail bonds. On the said day, though the accused was present in the Court, but neither the complainant nor his counsel was present, therefore, the complaint was dismissed for want of prosecution. The complainant did not file any appeal or revision or any petition under Section 482 of the Code for setting aside the said order by giving the reasons of his non-appearance on the said day. The aforesaid order dated 11-7-1988 (Annexure P-2) has, therefore, attained finality. Though in this order, it has not been mentioned by the Judicial Magistrate that the complaint was dismissed for non-prosecution under Section 256 of the Code, but this order appears to have been passed in view of this provision. Section 256 of the Code reads as under :--

256. Non-appearance or death of complainant -- If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary the Magistrate may dispense with his attendance and proceed with the case.

5. Since on 11-7-1988, in a summons case on the complaint filed by the respondent, when the petitioner-accused was present before the Court, neither the complainant nor his counsel was present, the Magistrate, in his discretion, did not deem it necessary to adjourn the case and dismissed the complaint for non-prosecution, therefore, in such a situation, the said order will be deemed to have been passed under Section 256 of the Code and the same will amount to acquittal of the accused. It is well settled that there is no provision in the Code empowering a Magistrate to review or recall the order of dismissal of complaint and acquittal of accused passed under this Section. When the Magistrate, in a summons case, has dismissed the complainant and acquitted the accused due to absence of the complaint on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or a petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same.

6. In the present case, instead of availing the aforesaid remedy, respondent No. 2 filed the second complaint on 18-7-1988 i.e. within seven days of the dismissal of his first complaint. It is pertinent to mention here that the second complaint (in Crl. Misc. No. 5686-M of 1992) is verbatim the copy of the first complaint, except para No. 10, in which the factum of filing of the first complaint, its dismissal and an explanation why counsel for the complainant was not present, have been mentioned. The said para 10 of the second complaint reads as under :-- "10. That on 11-7-1988 the earlier complaint filed by the complainant, was dismissed for want of prosecution as the counsel for the complainant wrongly rioted the date as 25-7-1988 on his brief. The counsel for the complainant was informed by the Reader on 15-7-1988 that earlier complaint stands dismissed as per orders of the Judicial Magistrate dated 11-7-88. Hence this fresh complaint.

7. In the second complaint, vide order dated 25-7-1988, the petitioner was again summoned to face trial under Sections 500/501/502, IPC. After appearing before the judicial Magistrate, the petitioner filed an application that his summoning in the second complaint, filed verbatim on the same facts, is not justified, when the earlier complaint was dismissed for want of prosecution and he was acquitted. The learned Judicial Magistrate, vide his order dated 29-5-1990 dismissed the said application while observing that it was premature as the point raised by the petitioner could have been argued at the time of arguments on charge/notice. Subsequently, again similar application was filed for dismissal of the complaint, which was also dismissed by the Judicial Magistrate on 13-1-1992, while holding that review of the summoning order in the second complaint is not permissible under law. It was further observed that in view of the judgment of the Hon'ble Apex Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, and Major General A.S. Gauraya v. S.N. Thakur, , the second complaint is maintainable.

8. Thereafter, the petitioner filed this petition under Section 462, Cr. P.C. for quashing of the second complaint and the subsequent proceedings arising therefrom.

9. Counsel for the petitioner submitted that on a complaint in a summons case, if the summon has been issued to the accused and he had appeared in the case, and on the day appointed for his appearance, he is present in the Court, but the complainant or his counsel is not present, then the Magistrate has two options :--

(a) he may adjourn the hearing of the case to some other day; or (b) he may dismiss the complaint and acquit the accused. Once in his discretion the Magistrate decides not to adjourn the case, then the only option left with him is to dismiss the complaint and acquit the accused. In such situation, the complainant has two remedies, firstly to file appeal against the order of acquittal, and secondly to file revision or petition under Section 482 Cr. P.C. for setting aside the order of dismissal of the complaint on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same. Counsel submitted that in this situation, the Judicial Magistrate has no jurisdiction to entertain an application for re-calling of the said order, in this regard the position of law is well settled.

10. Counsel for the petitioner further contended that if the order or dismissal of the complaint and acquittal of the accused has been passed in a summons case and the same has become final, it amounts to acquittal of the accused after full trial, and in such situation, the second complaint by the complainant on the same set of facts is not permissible. In support of his contention, he relied upon a Division Bench judgment of this Court in The State of Punjab v. Surjit Singh, 1977 Chand LR (Cri) 73, wherein it was held that in a summons case, if the accused are summoned, notice is issued to them by the Magistrate, they appear before the Magistrate, the complaint is dismissed in default for non-prosecution and the accused are acquitted, then such acquittal amounts to acquittal after full trial. It was further held that in such situation, the second complaint on the same facts is not maintainable. Counsel for the petitioner also relied upon a decision of this Court in M.S.S. Bedi v. Union Territory of Chandigarh, 1986 (1) Pun LR 687, wherein it was held that in a summons case, if the complaint is dismissed for non-appearance of the complainant or his counsel and the accused has been acquitted/discharged, the second complaint on the same set of facts for the same offence is not maintainable.

Counsel further submits that in the instant case, the filing of second complaint which is verbatim of the first complaint, except para No. 10, as indicated above, and summoning of the petitioner in the second complaint amounts to review of the order dated 11-7-1988, vide which the earlier complaint was dismissed for non-prosecution and under the law the Judicial Magistrate has no jurisdiction to review or re-call his order. Therefore, counsel submitted that summoning of the petitioner in the second complaint and continuation of the same is nothing but an abuse of the process of the Court and the subsequent proceedings are liable to be quashed.

11. On the other hand, counsel for the respondent No. 2 submits that filing of the second complaint on the same facts after dismissal of the first one is not barred. He submits that in certain exceptional circumstances even the second complaint on the same facts can be entertained. According to counsel for respondent No. 2, the case in hand falls under exceptional circumstances because on 11-7-1988 the complainant or his counsel could not appear in the first complaint, as the counsel had noted a wrong date i.e. 25-7-1988 on his brief and the complainant was not at fault. Therefore, in such circumstances, if the trial Court has entertained the second complaint on the same facts and issued the summons, the same was not illegal or without jurisdiction. In support of his contention, counsel for the respondent relied upon judgments of the Hon'ble Apex Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, (1962) 1 Cri LJ 770 (supra), Major General A.S. Gauraya v. S.N. Thakur, 1986 Cri LJ 1074 (supra) and a judgment of this Court in Ajit Singh v. Makhan Singh, (1994) 2 Rec Cri R 361.

12. If a private complaint is filed under Chapter XV of the Code, in a summons case, the same can be dismissed by the Judicial Magistrate at the following four stages :--

(i) On receipt of a complaint for an offence, without recording the statement of the complainant or his witnesses, if the Judicial Magistrate comes to the conclusion that the contents of the complaint itself do not disclose any offence or provide a sufficient ground for further proceeding with the complaint. Such dismissal will fall under Section 202 of the Code.

(ii) After recording and considering the preliminary statement/evidence of the complainant and his witnesses, if the Judicial Magistrate is of the opinion that there is no sufficient ground or material to proceed with the complaint. Such dismissal will fall under Section 203 of the Code.

(iii) After summoning of the accused, on a complaint in a summons case, when the accused appears, but neither the complainant nor his counsel is present and the Judicial Magistrate is of the opinion that there is no sufficient ground to adjourn the case and dismisses the complaint. Such dismissal of the complaint will be under Section 256 of the Code and will amount to acquittal of the accused.

(iv) On merits, after holding that the complainant has not proved the guilt.

13. Now, the question arises as to in which of the aforesaid four stages, the second complaint on the same facts, in a summons case, is maintainable. In the light of these facts and circumstances, I have examined the various judgments of the Hon'ble Apex Court on this aspect.

14. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, 1962 (1) Cri LJ 770 (supra), the Hon'ble Apex Court has observed as under :--

"... An order of dismissal under Section 203 of the 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 mainfestly absurd, unjust or foolish or where new facts -which could not, with reasonable diliegence, have been brought on the record in the previous proceedings have been adduced."

15. In the aforesaid case, the complaint was dismissed under Section 203 of the Code by the Judicial Magistrate, as in his opinion the material placed by the complainant was not sufficient to summon the accused and to proceed with the complaint. After dismissal of the said complaint, the second complaint was filed, in which certain additional facts were disclosed on the basis of which the accused were summoned. In those facts, the question arose whether the filing of second complaint in such circumstances was permissible or not. The aforesaid case is not a case where the complaint was dismissed after summoning of the accused and on the ground that neither the complainant nor his counsel was present and the Magistrate did not adjourn the case and dismissed the complaint under Section 256 of the Code. In view of the aforesaid facts, the Hon'ble Apex Court, while considering the various judgments, has further observed as under :-- "Though there was nothing in law to bar the entertainment of a second complaint on the same facts, exceptional circumstances must exist for entertainment of a second complaint when on the same allegations a previous complaint had been dismissed.... I accept the view expressed by the High Courts that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint has been dismissed under Section 203 of the Code of Criminal Procedure. I also accept the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 20-4(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint, when a previous complaint on the same allegations was dismissed under Section 203 of the Code of Criminal Procedure."

16. In Major General A.S. Gauraya v. S.N. Thakur, 1986 Cri LJ 1074 (supra), the complainant filed an application for restoration of the complaint which was dismissed in default for want of prosecution. The said order was passed after appearance of the accused, when the complainant or his counsel was not present. The Judicial Magistrate allowed that application and the complaint was restored. Subsequently, the accused moved application before the Judicial Magistrate stating that the order of restoration was without jurisdiction, since the Magistrate had become functus officio after dismissal of the complaint in default. The said application of the accused was rejected by the Judicial Magistrate while observing that he was having inherent power to re-call the earlier order under the Code. Against that order, the accused preferred revision before the High Court, which was dismissed. Then, the matter came to the Hon'ble Apex Court. While allowing the appeal of the accused, the orders of the Judicial Magistrate as well as the High Court restoring the complaint, were set aside and the order passed by the Magistrate dismissing the complaint was restored. It was observed that so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. The Hon'ble Apex Court has further observed as under :-- "9. Section 249 of the Criminal P. C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said Section are satisfied. Section 256(1) of the Criminal P. C. enables a Magistrate to acquit the accused, if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complaint and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P. C. does not contain any provision enabling the criminal Court to exercise such an inherent power."

17. In Jatinder Singh v. Ranjit Kaur, , the wife filed a complaint against her husband and four others for the offence of bigamy under Section 494 read with Section 109 IPC. The Judicial Magistrate kept on waiting for holding an inquiry under Section 202 of the Code. The unfortunate lady had to file an application before the Judicial Magistrate reminding that for the last more than one year, she is regularly appearing in the Court and the case has been adjourned on many occasions without the accused being summoned to appear. Even though the statement of the complainant and her witnesses were recorded, but before passing the order to summon the accused, the Magistrate dismissed the complaint because the complainant was not present inside the Court when the case was called. In that situation, instead of taking up the matter to the higher Courts, the wife filed another complaint on the same allegations, in which the accused were summoned. It is pertinent to mention here that in the said case also, the complaint was dismissed prior to issuing the summons to the accused. In the aforesaid facts, the Hon'ble Apex Court has observed as under:--

"9. There is no provision in the Code or in any other statute which debar a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that "the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of this Section". However, when a Magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance.

10. & 11. X X X

12. If the dismissal of the complaint was not on merit but on default of the complainant 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 under Section 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 under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, . A majority of Judges of the three Judge Bench held thus (para 48) : "An order of dismissal under Section 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 complaint 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."

18. In the aforesaid case, again the dismissal of the first complaint by the Judicial Magistrate was not under Section 256 of the Code.

19. Again in Mahesh Chand v. B. Janardhan Reddy, , the question of filing the second complaint on the same facts came up for consideration before the Hon'ble Apex Court. In that case, the FIR was lodged by the complainant for the alleged offence and the cancellation report was submitted by the Investigating Officer as he came to the Civil dispute. The complainant submitted a protest report and filed a complaint. Ultimately, the Judicial Magistrate accepted the cancellation report and that order became final. Subsequently, the complainant filed a private complaint under Section 200 of the Code, whereupon the accused were summoned. The accused challenged their summoning under Section 482 of the Code. The High Court allowed that petition while holding that in view of the dismissal of the protest petition filed by the complainant and acceptance of the cancellation report submitted by the police, a fresh complaint on the same allegations was barred. The said order was challenged before the Hon'ble Apex Court. While setting aside the order of the High Court and remitting the matter to the Judicial Magistrate for consideration of the matter afresh, the Hon'ble Apex Court observed that there cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. Thereafter, while relying upon the decision in Pramatha Nath Talukdar's case (1962 (1) Cri LJ 770) (supra), a decision of the Patna High Court in Munilal Thakur v. Nawal Kishore Thakur, 1985 Criminal Law Journal 437 and a decision of the Orissa High Court in District Manager, Food Corporation of India v. Jayashankar Mund, 1989 Criminal Law Journal 1578, the Hon'ble Apex Court held as under :-- "19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that 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 204 Cr PC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complaint in previous matter upon a full consideration of this 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 record 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. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."

20. In Poonam Chand Jain v. Fazru, 2005 SCC (Cri) 190 : 2005 Cri LJ 100 again the question of maintainability of second complaint on the same allegations after dismissal of the first complaint came up for consideration before the Hon'ble Apex Court. In that case, a complaint filed by Fazru was dismissed by the Judicial Magistrate on 13-1-1994. It appears that the said complaint was dismissed under Section 203 of the Code. Against the order, a revision was filed which was also dismissed. Again in the year 1997, second complaint was filed by the complainant, in which summons were issued. The accused challenged the summoning order in revision before Addl. Sessions Judge, which was allowed and the complaint was dismissed. Aggrieved against the said order, the complainant filed petition before this Court, which was allowed and it was held that if the accused had any grievance against the summoning order, they could seek review of the same and get them discharged under Section 245 of the Code. While setting aside the said order and remanding the matter to this Court, the Hon'ble Apex Court has observed that in view of the law laid down in Pramatha Nath Talukdar's case, 1962 (1) Cri LJ 770 (supra), Bindeshwari Prasad Singh v. Kali Singh, and Mahesh Chand's case, 2003 Cri LJ 866 (supra), 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 reason, the Magistrate under Section 204 of the Code may take cognizance of an offence and issue process if there is sufficient ground for proceeding. But the second complaint on the same facts be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record 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. In view of the said legal position, the Hon'ble Apex Court remanded the matter to the High Court, as it had not considered the legality of the order directing issuance of process keeping in view the law laid down by the Hon'ble apex Court. In this case also, the dismissal of the complaint was not covering a situation where the complaint is dismissed under Section 256 of the Code.

21. From the aforesaid discussion and the various judgments, the position of law emerges as under :--

22. That in a summons case, if an accused has been summoned on a private complaint and he was present before the Judicial Magistrate on the day of summoning or hearing and the complainant or his counsel is not present, the Magistrate may, in his discretion, adjourn the hearing of the case of some other day, and if he does not decide so, then he shall dismiss the complaint and acquit the accused. The Judicial Magistrate has no jurisdiction to review/recall such an order of dismissal of the complaint and acquittal of the accused. If the complainant is aggrieved against the dismissal of the complaint and acquittal of the accused on the aforesaid ground, he has the remedy to challenge the order on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same. In such circumstances, the appellate /revisional Court or the High Court in exercise of its power under Section 482 of the Code, can set aside such order, if the complainant explains his non-appearance on the particular day or convinces the Court that in the facts and circumstances of the case, the Magistrate has failed to exercise his discretion properly while not adjourning the case for some other day and has wrongly dismissed the complaint and acquitted the accused. A second complaint is not barred where the matter has not been decided on merit and the same can be filed in exceptional circumstances. The exceptional circumstances for entertaining the second complaint have been brought in the following three categories :--

(i) Manifest error;

(ii) Manifest miscarriage of justice; and

(iii) New facts, of which the complainant had knowledge, but could not be brought on record by the complainant, with reasonable diligence, in the previous proceedings, have been adduced.

In such situation, the Magistrate can entertain second complaint on the same allegations even though the earlier complaint was dismissed under Section 203 of the Code.

23. In my opinion, the aforesaid judgments of the Hon'ble Apex Court in Pramatha Nath Talukdar, Saroj Ranjan Sarkar, Major General A.S. Gauraya v. S.N. Thakur , Jatinder Singh v. Ranjit Kaur, , Mahesh Chand v. B. Janardhan Reddy, , and Poonam Chand Jain v. Fazru, 2005 SCC (Cri) 190 : 2005 Cri LJ 100, do not cover the facts of the present case. In none of these judgments, the situations where the first complaint was dismissed after summoning of the accused, the accused stands acquitted under Section 256 of the Code because of non-appearance of the complainant and his counsel; and because of the fact that the Judicial Magistrate, in his discretion, did not think it proper to adjourn the case to some other day; and the said order was never challenged by the complainant before the High Court and the same became final, have been considered. It is well established principle that while considering the ratio laid down in one case, the Court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. In the instant case, once the Judicial Magistrate dismissed the first complaint for non-prosecution, which amounts to acquittal of the accused under Section 256 of the Code and the said order has become final, the second verbatim complaint is not maintainable.

24. Now, the question arises for consideration is whether the provisions of Section 300 of the Code are applicable, when a complaint is dismissed for non appearance of the complainant or his counsel and accused stands acquitted under Section 256 of the Code. Section 300 of the Code which is based on the maxim nemo debet bis vexari and which has now been recognized under Article 20 of the Constitution of India lays down that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for such offence shall, while such conviction or acquittal remains in force, not be liable to be 'tried' again for the same offence. The word tried used in this section would not necessarily mean 'tried on merits'. In a summons case, the accused is said to be tried when he appears and answers to the intimidation under Section 251 of the Code which takes the place of a formal charge but in a warrant case or in a case triable by Sessions, the trial commences after a charge is framed under Section 228 of the Code. In a summons case, acquittal of an accused under Section 256 of the Code is covered by Section 300(1) of the Code keeping in view the explanation added to Section 300. When a complaint is dismissed on account of non appearance of the complainant or his counsel, but the accused is present, and the accused stands acquitted under Section 256 of the Code, then in my opinion, the order of such acquittal under Section 256 of the Code does not come within the explanation of Section 300 of the Code, which provides that dismissal of a complaint or discharge of the accused is not an acquittal for the purpose of this section. The explanation talks about dismissal of the complaint and discharge of the accused. The words 'discharge' and 'acquittal' cannot be equated. In a warrant case, if the complaint is dismissed on account of non appearance of the complainant or his counsel, such dismissal of the complaint means that the accused has been discharged under Section 249 of the Code. In the explanation, the legislation has used word 'discharged' and not 'acquitted". In Sub-section (5) of Section 300 of the Code, it has been specifically mentioned that a person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court. This Court in Harbhagwan Das v. Daljit Singh, (1.972) 74 Pun LR 489. The State of Punjab v. Surjit Singh, 1977 Chand LR (Cri) 73, and M.M.S. Bedi v. U.T. Chandigarh, 1986 (1) Pun LR 687 has taken the view that acquittal of an accused for non appearance of the complaint in a summon case when the accused is present in the Court shall be treated as acquittal after full trial and in such situation, he cannot be tried again in a second complaint. In my view, the explanation of Section 300 of the Code will not cover dismissal of the complaint which amounts to acquittal under Section 256 of the Code and a second complaint in such a situation will be barred.

25. Even if in certain exceptional circumstances, second complaint can be entertained, even then in my opinion, the instant case does not fall in any of the exceptional circumstance, as indicated in the aforesaid judgments of the Hon'ble Apex Court. In my opinion, from the facts of the present case, it cannot be said that while dismissing the first complaint, a manifest error or manifest miscarriage of justice was committed by the Judicial Magistrate. Admittedly, on the day when the accused were summoned and appeared before the Court, neither the complainant nor his counsel was present. The Judicial Magistrate did not exercise his discretion to adjourn the case to some other day and dismissed the complaint, which resulted into acquittal of the accused under Section 256 of the Code. This order was not challenged before the higher Court either in appeal or revision or in a petition under Section 482 of the Code. Even in exercise of suo motu power of this Court, I do not find that the complaint filed by respondent No. 2 in the year 1982 should be restored now, after the expiry of more than 20 years. Once an order was passed in accordance with law and the same became final, as the aggrieved person did not challenge the same before the competent Court passing of such an order cannot be said to be causing manifest miscarriage of justice. The complaint, after 7 days of the dismissal of his first complaint, has filed the second complaint, verbatim the first one. Issuing of process on such a complaint, in my opinion, by the Magistrate amounts to reviewing the earlier order, which under the law is not permissible. In the instant case, the dismissal of first complaint was not a dismissal under Section 202 or 203 of the Code. Rather, it was dismissed under Section 256 of the Code. In that situation, filing of the second complaint without there being any manifest error or manifest miscarriage of justice could not be entertained. Thus, in my opinion, in the special facts and circumstances of the case, the issuing of summon by the Magistrate to the petitioner, on the second complaint which was filed verbatim on the same allegations is an abuse of the process of the Court, particularly keeping in view the fact that the alleged occurrence is of the year 1982.

26. In view of the aforesaid, both these petitions are allowed. The second complaints filed by respondent No. 2 and the subsequent proceedings are hereby quashed.