A second narazi complaint on the same facts is maintainable under exceptional circumstances, and the right of the complainant to file a narazi complaint is irrespective of whether the final report was accepted ex-parte or upon hearing the informant.

JUDGMENT

Mir Alfaz Ali, J. - Learned Sr. Counsel, Mr. HRA Choudhury, assisted by Mr. M. Khan, learned advocate for the petitioners and learned Sr. Counsel, Mr. A.M. Bora assisted by Mr. V. Choudhury, learned advocate for the respondent have been heard.

2. The question raised in this revision petition is whether after acceptance of final report upon hearing the informant/complainant, a fresh complaint on the same set of fact is maintainable.

3. The facts leading to the present revision petition, are as under:

4. The respondent No. 2, as complainant lodged a complaint before the Chief Judicial Magistrate, Cachar, Silchar on 12.11.2010, which was forwarded to police by the learned Magistrate under Section 156 (3) of the CrPC for investigation. After investigation, police submitted a final report stating that the allegation was not proved, whereupon, learned Magistrate issued notice to the complainant/informant. Pursuant to the notice regarding submission of final report, the respondent/complainant filed an objection against the final report, alleging that the investigation was not conducted properly and prayed for taking cognizance. However, learned Magistrate after hearing the complainant/informant accepted the final report and rejected the prayer of the informant. Thereafter, the complainant filed a fresh complaint, whereupon the learned Magistrate took cognizance treating the same to be a narazi complaint and issued process. Against the said order of the learned Magistrate taking cognizance against the revision petitioners, they preferred a revision petition before this court challenging maintainability of the complaint. This court by order dated 24.05.2012 passed in Crl. Petition No. 12/2012 remanded the matter to the learned Magistrate to decide the question of maintainability of the complaint first and then to proceed with the case. Upon remand, learned Magistrate by its order dated 12.07.2012 held that the complaint is not maintainable. Against the said order, the respondent preferred a revision petition before the learned Sessions Judge and the learned Sessions Judge by order dated 18.02.2013 set aside the order of the learned Magistrate and send back the complaint to the learned Magistrate for taking cognizance. Aggrieved by the order of the learned Sessions Judge in Criminal Revision Petition No. 101/2012, the accused/petitioners have preferred the instant revision petition.

5. Learned Sr. Counsel for the petitioners Mr. HRA Choudhury submitted that the facts alleged in the original complaint, which was registered as FIR and the facts alleged in the present complaint in question were same and therefore on the same set of facts, the second complaint is not maintainable after acceptance of the final report upon hearing the complainant. Further contention of Mr. Choudhury is that the protest petition filed by the respondent against the final report shall be treated as the first narazi complainant, and therefore, the subsequent complaint in question after rejection of the protest petition is also not maintainable being a second narazi complainant. To buttress his submission, Mr. Choudhury placed reliance on the following decisions.

Shivshankar Singh Vs. State of Bihar & Anr., (2012) 1 SCC 130

H.S. Bains Vs. State (Union Territory of Chandigarh, (1980) AIR SC 1883

Bindeshwari Prasad Singh Vs. Kali Singh, (1977) AIR SC 2432

Poonam Chand Jain & Anr. Vs. Fazru, (2010) 2 SCC 631

6. Learned Sr. Counsel for the respondents Mr. A.M. Bora submitted that acceptance of final report is not a bar to a fresh complaint on the same facts, inasmuch as, such complaints are to be treated as narazi complainant. Further contention of Mr. Bora is that even if the objection petition filed by the respondent/complainant is taken to be first narazi complainant, the second narazi complainant is also not barred by law. In support of his submission, Mr. Bora placed reliance on the following decisions:

Jamuna Shah & Ors. Vs. Bhuban Chandra Kalita,2001 2 GLT 427

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