A second complaint on the same facts as the first complaint, which was dismissed for non-appearance of the complainant, is not maintainable unless exceptional circumstances are shown.

H. K. Sandhu, J. - Dr. Krishan Kumar has filed this petition under Section 482 of the Code of Criminal Procedure for quashing complaint Annexure P-1 summoning order Annexure P-2 and subsequent proceedings arising out of the complaint Annexure P-2.

2. As per case of the petitioner, the respondent filed a complaint against him and his mother under Sections 406, 489-A and 506 of the Indian Penal Code in the court of Chief Judicial Magistrate, Rohtak copy of which was Annexure P-3. The complaint was fixed for recording the statement of the complainant on 4th May, 1991 but as the complainant did not appear in the court on that day the complaint was dismissed vide order dated 4.5.1991 Annexure P-4. The respondent filed another complaint on the same facts before Additional Chief Judicial Magistrate, Rohtak and on the basis of the second complaint Annexure P- 1, the petitioner and his, mother were summoned to stand trial for the offences under sections 406/498-A, and 506 of the Indian Penal Code as per order dated 24th Jan, 1992 Anne P-2. The respondent deliberately concealed the factum of dismissal of her previous complaint Annexure P-3 by the Chief Judicial Magistrate, Rohtak. The allegations in both the complaints were exactly the same and this second complaint was not maintainable when the first complaint was dismissed for non-appearance of the respondent. The respondent did not file a revision for getting the order Annexure P-4 set aside. The subsequent complaint and the summoning order were abuse of the process of the court and were liable to be quashed. Hence the petition.

3. In the return filed by the respondent this fact was not of denied that the previous complaint of the respondent was dismissed for want of prosecution but it was contended that complaint was dismissed on the first date of hearing and in fact Chief Judicial Magistrate had no, jurisdiction to take proceedings in that complaint as the Ilaqa Magistrate was the Additional Chief Judicial Magistrate. No preliminary evidence was recorded on the earlier complaint and the court had not taken cognizance of the offence. The second complaint was thus maintainable.

4. Have heard Mr. Varinder Singh learned counsel for the petitioner and Mr. Surinder Singh, learned counsel for the respondent and have perused the record.

5. It was argued on behalf of the respondent that the first complaint Annexure P-1 was dismissed for non-appearnace of the respondent on the first hearing of the case and as the cognizance of the offence had not been taken and the offence was not compoundable, the second complaint was maintainable on the same facts. The learned counsel for the petitioner on the other hand contended that cognizance of the first complaint had been taken by the court and it was dismissed as the respondent did not appear in court when her statement was to be recorded. No special circumstances were mentioned while filing the second complaint which could justify the institution of the same.

6. The respondent produced certified copies of the orders passed in the first complaint Annexure P-2 which show that on 24.4.1991 when the complaint was presented in court by the respondent, the trial court ordered its registration and adjourned the same for recording the statement of the respondent on 4th May, 1991. On the date fixed the case was called many a time but as the respondent did not appear, it was dismissed in default. The order dated 24.4.99, shows that the court had taken cognizance of the offence and the second complaint in these circumstances could be entertained only in exceptional circumstances. In the case of Pramatha Nath Talukdar and another v. Saroj Ranjan Sarkar, 1962(2) Supreme Court Appeals 53 it was held that :-

"An order of dismissal of a complaint under Section 203 of the Criminal Procedure Code, 1898 is not a bar to the entertainment of second complaint on the same facts and allegations, but such a second complaint can be entertained only in exceptional ci