The main legal point established in the judgment is that the filing of a second complaint on the same set of facts can only be entertained in exceptional circumstances, and the court must ensure that there is no abuse of the process of the Court.

JUDGMENT :

K.S. Mudagal, J.

1. Heard both side.

2. "Whether the proceedings in C.C.No. 122/2017 on the file of the Additional Senior Civil Judge and A.C.J.M., Udupi amount to abuse of the process of the Court?" is the question involved in this case.

3. On 14/6/2015 Respondent No. 2 filed complaint as per Annexure-D alleging that due to some previous ill-will, the petitioner, accused Nos.2 to 4 and 15 others, forming themselves into an unlawful assembly armed with deadly weapons at about 7:30 p.m. on that day, near Kodange of Herga village assaulted him and his elder brother Antony and caused them grievous injuries.

4. On the basis of such complaint, respondent No. 1 registered FIR as per Annexure-F in Crime No. 113/2015 against the petitioner and others for the offences punishable under Ss. 143, 147, 148, 341, 324, 326, 506 read with Sec. 149 of IPC.

5. On investigation, respondent No. 1 - police filed charge sheet dtd. 30/1/2016 as per Annexure-J against 13 accused for the offences punishable under Ss. 143, 147, 148, 326, 504, 307 read with Sec. 149 of IPC. The Investigating Officer dropped the petitioner from the charge sheet on the ground that respondent No. 2 gave a further statement to the effect that the petitioner had gone to the scene of offence to pacify the quarrel and under mistaken notion he included the petitioner also as an accused.

6. It is submitted that thereafter the matter is committed to the Sessions Court and pending for trial. Thereafter, respondent No. 2 filed PCR No. 8/2017 against the petitioner before the Principal Senior Civil Judge and C.J.M., Udupi to prosecute the petitioner on the same set of facts. In that complaint, he alleged that respondent No. 1 - police in collusion with the petitioner have dropped him from the case and he had not given any further statement as alleged in the charge sheet.

7. The learned Magistrate on the basis of such complaint, recorded the sworn statement of respondent No. 2 and by the impugned order dtd. 17/6/2017, took cognizance of the offences. By virtue of the said order, the case is now registered in C.C.No. 122/2017 and the petitioner is summoned to face the Trial.

8. The petitioner seeks quashing of the said proceedings on the ground that once an accused is dropped from the case while filing the charge sheet, the remedy of the complainant is only either to file protest petition or to summon him under Sec. 319 of Cr.P.C. at the inquiry or trial. He claims on the same cause of action, the second complaint was not maintainable.

9. Sri. Shashikiran Shetty, learned Senior Counsel appearing for Smt.Latha S. Shetty advocate on record for the petitioner reiterating the grounds urged submitted that when the learned Magistrate was aware of the earlier proceedings, he was not justified in taking cognizance. He further submits that the observation of the learned Magistrate that further statement of the complainant did not bear his signature is contrary to Sec. 161 of Cr.P.C.

10. So far as the maintainability of the writ petition he submits that the petition is under Sec. 482 of Cr.P.C., invoking the inherent power of the Court, since the abuse of the Court is apparent. He submits that there is no merit in the contention that the revision lies.

11. In support of his contentions, he relies upon the following judgments:

(i) Dharm Pal and Others vs. State of Haryana and Another, (2014) 2 SCC (Cri) 159

(ii) Smt. Vinod Gupta vs. Haryana State Pollution Control Board through its Regional Officer, Faridabad, 2015 SCC Online P&H 13635

12. Per contra, Sri.M.G.Kumar, learned counsel for respondent No. 2 submits that there is no complete bar for filing a second complaint on same set of facts. He further submits that respondent No. 1 - police under the influence of the petitioner dropped him from the case though there was material to proceed against him. He further submits that respondent No. 2 had not given any further statement before the Investigating Officer as alleged.

13. In support of his content