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2016 Supreme(Ori) 611
IN THE HIGH COURT OF ORISSA, CUTTACK
K.R. MOHAPATRA, J.
Ramakanta Sahoo and others – Petitioners
Versus
State of Orissa and another - Opp. Parties
CRLMC NO. 512 OF 2013
Decided On : 16-09-2016
For the Petitioners: M/s. Arijeet Mishra, S.K. Jena, S. Biswal, S.K. Panda, S.P. Mishra & P.C. Mishra
An acquittal under Section 256 (1) of the Cr.P.C. is covered under the provisions of Section 300 (1) of the Cr.P.C., and a second complaint on the same facts could only be entertained in exceptional circumstances.
Headnote:
Section 482 Cr.P.C. - Maintainability of Second Complaint - Sections 294, 323, 341, 342, 506 and 34 I.P.C. - Section 256 (1) of the Cr.P.C. - Section 300 (1) of the Cr.P.C.
Fact of the Case:
The petitioners challenged the order taking cognizance of the offence under Sections 294, 323, 341, 342, 506 and 34 I.P.C. in a second complaint after the earlier complaint was dismissed for default and the accused were acquitted under Section 256 (1) of the Cr.P.C.
Finding of the Court:
The court found that the second complaint on the same set of allegations was not maintainable after the earlier complaint was dismissed for default and the accused were acquitted under Section 256 (1) of the Cr.P.C.
Issues: The main issue was whether a second complaint on the same allegation is maintainable when the earlier one was dismissed under Section 256 (1) of the Cr.P.C.
Ratio Decidendi: The court relied on the interpretation of Section 300 (1) of the Cr.P.C. and various case laws to conclude that an acquittal under Section 256 (1) of the Cr.P.C. is covered under the provisions of Section 300 (1) of the Cr.P.C., and a second complaint on the same facts could only be entertained in exceptional circumstances.
Final Decision: The court allowed the petition and quashed the proceeding in the second complaint, holding it to be not maintainable.
ORDER :
K.R. Mohapatra, J.
The petitioners in this petition under Section 482 Cr.P.C. assail the order dated 24.12.2012 (Annexure-2) passed by the learned J.M.F.C., Jajpur Road in I.C.C. No. 209 of 2012 taking cognizance of the offence under Sections 294, 323, 341, 342, 506 and 34 I.P.C.
2. Though notice on the opposite party no.2 was made sufficient, none appears for the opposite party no. 2, when the matter was called.
3. It is submitted by Mr. Mishra, learned counsel for the petitioners that the opposite party no.2 had earlier filed I.C.C. No. 35 of 2010 before the learned J.M.F.C., Jajpur Road. After appearance of the petitioners in the aforesaid complaint case, the matter was posted for hearing. On 14.05.2012, when the matter was posted for hearing, though the petitioners appeared, neither opposite party no. 2 nor his counsel took any step. Hence, the complaint was dismissed for default for nonappearance of the complainant-opposite party no.2 and the petitioners were acquitted. Subsequently, the petitioners filed another complaint case (I.C.C. No. 209 of 2012) on the same set of allegations and stating that due to their illness, they could not appear on the date of hearing for which I.C.C. No. 35 of 2010 was dismissed for default on 14.5.2012. It is the submission of Mr. Mishra that the second complaint (I.C.C. No. 209 of 2012) for the same offence is not maintainable and hence, the proceeding is liable to be quashed.
4. When the matter came up on 8.8.2016, this Court after hearing leaned counsel for the parties passed an order directing the learned counsel for the petitioners to check up whether after dismissal of the complaint under Section 256 (1) Cr.P.C. for non-appearance of the complainant and acquittal of the accused, a second complaint for the selfsame occurrence would lie or not.
5. In view of the above, the only question remains to be decided in this case is whether the second complaint on the self-same allegation is maintainable, when earlier one was dismissed under Section 256 (1) of the Cr.P.C.
6. In support of his case, Mr. Mishra, learned counsel for the petitioners relied upon the decision in the case of Om Gayatri & Co. & others –v- State of Maharashtra & another, 2006 CRI. L.J. 601, wherein it has been held as follows:
“11. ………….In the present case, the Magistrate found that the complainant was avoiding to lead evidence, therefore, relying on the ruling of this Court reported in 1998 Mah LJ 576: (1998 Cri LJ 3754) the Magistrate proceeded to pass an order acquitting the accused. Once this order has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave of the Court as required by Section 378 (4) of Cr.P.C...... …………… There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under Section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378 (5) of the Criminal Procedure Code, 1973.”
7. Mr. Pani, learned Addl. Standing Counsel for the State, however, supported the impugned order of taking cognizance and submitted that earlier complaint having not been considered on merit and the petitioners having not faced the trial, a second complaint on the same set of allegations is maintainable.
8. Having heard Mr. Mishra, learned counsel for the petitioners and the learned Addl. Standing Counsel for the State (opposite party no. 1) and on perusal of the case record, it is abundantly clear that the learned J.M.F.C. has exercised his power conferred on him under Section 256 (1) of the Cr.P.C. and dismissed the complaint for default of the complainant and acquitted the accuse
