A second complaint on the same allegations is permissible only under exceptional circumstances; dismissal of the first complaint does not alone allow for re-filing without new supporting facts.

1. Petitioner is the accused in CC 550/09 of JFCM, Karunagappally. That was a private complaint filed by the second respondent alleging offences against the accused under S.342 and S.324 IPC. On 31/03/2007, at about 08:00 am while the petitioner was working as Sub Inspector of Police, Chavara he voluntarily caused hurt to the complainant (R2) from the Police Station and R2 was illegally confined in that Police Station. Another allegation made in the complaint was that the relatives of the wife of the R2 had abducted R2 on 30/03/2007. It was further alleged that R2 was manhandled by the persons who had abducted him.

2. It is contended by the petitioner that the complaint was earlier filed by the complainant as Criminal MP 14664/07 before JFCM, Karunagappally against 9 persons including the petitioner herein. Annexure - 2 is that complaint dated 13/11/2007. The petitioner was arrayed as the 9th accused herein. After conducting enquiry under S.202 CrPC, the learned Magistrate dismissed the complaint as against this petitioner under S.203 CrPC evidently because there was no material to proceed against this petitioner. Since cognizance was taken pursuant to that complaint only against the other 8 accused persons and since the complaint against this petitioner was dismissed under S.203 CrPC, the complainant cannot again file a complaint putting forth the very same allegation.

3. The learned counsel for the petitioner would submit that Annexure - A1 complaint is the verbatim reproduction of Annexure - A2 complaint, except to the extent that instead of describing the petitioner as the 9th accused in Annexure - A1, he was described as accused. It is also submitted that in Annexure - A1 complaint the fact that Annexure - A2 complaint was dismissed to the extent it related to the petitioner herein was conveniently suppressed by the petitioner. It is not a case where the additional fact or fact which was omitted to be considered by the Court in Annexure - A2 complaint was highlighted subsequently to convince that there was change of circumstances and additional materials so as to proceed against the petitioner. Therefore, the learned counsel for the petitioner submits that since the first complaint was dismissed as against the petitioner, the remedy open to the petitioner was to challenge that order before the Superior Courts and not to re - agitate the same on the same set of facts.

4. The learned counsel for the respondent / complainant would submit that as per Annexure - 2, cognizance was not taken against the petitioner, presumably, because no sanction order was obtained to proceed against the petitioner. But nothing has been mentioned to show that the learned Magistrate was inclined to take cognizance of the case against the petitioner for want of sanction under S.197 CrPC. Therefore, that argument advanced by the learned counsel for the respondent cannot be sustained. It could not be stated as to what was the additional factor or other circumstances which the complainant can bank upon to contend that the second complaint is not unsustainable. The learned counsel for the petitioner has relied upon the decision in Mahesh Chand v. Janardhana Reddy and Another, 2003 KHC 241 : AIR 2003 SC 702 : 2003 (1) KLT SN 63 : 2003 (1) KLJ NOC 20 : 2003 (1) SCC 734 : 2003 CriLJ 866 to fortify his submission that if the earlier complaint was dismissed by the Court upon full consideration of the case against the petitioner, the second complaint on the same facts could be entertained only in exceptional circumstances. The learned counsel for the respondent would submit that there is nothing in law which prohibits the entertainment of second complaint on the same allegation when the previous complaint had been dismis