Holding

A complaint dismissed for default, not on merits, does not bar the filing of a second complaint on the same facts, and the second complaint is maintainable.

Summary

Ranjit Kaur filed a criminal complaint against Jatinder Singh under IPC 494 for bigamy and against four others under IPC 109 for abetment. The Judicial Magistrate dismissed the complaint for default because the complainant was absent, and she subsequently filed a second complaint with the same allegations before the same magistrate, who then took cognizance and issued summons. The appellant sought revision, which was allowed by the Sessions Judge, but the Punjab and Haryana High Court set aside that order and revived the magistrate’s proceedings. The appellant appealed to the Supreme Court, arguing that the first dismissal, whether for default or on merits, barred a second complaint and that the complainant acted in bad faith by not disclosing the earlier dismissal. The Court held that the Code of Criminal Procedure contains no bar to refiling a complaint when the earlier dismissal was for default, and that the second complaint was therefore maintainable; the allegation of lack of bona fides was rejected. Consequently, the appeal was dismissed, upholding the High Court’s decision.

Issues considered

Whether a complaint dismissed by a magistrate for default can be refiled on the same facts.
Whether a dismissal of a complaint, whether for default or on merits, amounts to an acquittal that bars a second complaint under Section 300 CrPC.
Whether the complainant’s failure to disclose the earlier dismissal defeats the maintainability of the second complaint on grounds of lack of bona fides.

Legislation cited

Code of Criminal Procedure, 1973s. 202, s. 203, s. 300
Indian Penal Code, 1860s. 109, s. 494

Subjects

bigamycomplaint dismissaldefaultsecond complaintCriminal Procedure CodeSection 202Section 203Section 300abetmentbona fides

Judgment

JA TINDER SINGH A
v.
RANJIT KAUR

JANUARY 30, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B
--~

Criminal law:

Code of Criminal Procedure. 1973-Sections 202, 203 and 300-
Marriage with appellant who was already married-Complaint ll'ith Judicial C
Magistrate-Dismissal of Complaint for default--Second complaint flied with
same Magistrate-Summons issued-Validity of second complaint-Held, the
second complaint is valid since the first complaint was dismissed for default
and not on merits-Penal Code, 1860-Sections I 09 and 494.

Respondent felt cheated after her marriage with appellant, when she D
came to know that the appellant was already married and has a child from his
earlier marriage. Her younger sister connived with the appellant for
-~ performing the marriage between them clandestiny when the respondent was
enceinte. Aggrieved, the respondent filed a complaint before Judicial
Magistrate against the appellant under Section 494 l.P.C. for offence of bigamy, E
and against four others including her sister under Section 109 l.P.C. for
offence of abetment. The Magistrate dismissed the complaint for default as
the respondent was not present in the Court when the case was called up for
hearing. Immediately, the respondent filed another complaint before the same
Magistrate. The Magistrate took cognisance of the offence and issued
summons to the appellant and others mentioned in the complaint. The appellant F
objected to the complaint before the Magistrate contending that the earlier
complaint filed by the respondent with the same allegations was dismissed.
The Magistrate overruled the objections of the appellant. The appellant filed
a revision petition before Sessions Judge, which was allowed. The respondent
challenged the order of the Sessions Judge by a filing a revision petition G
before High Court. The High Court set aside the order of the Sessions Judge
and revived the order of Magistrate.

In appeal to this Court, the appellant contended that the dismissal of
first complaint, whether for default or on merits, has the same effect of
707 H
708 SUPREME COURT REPORTS [2001] 1 S.C.R.

A exonerating the appellant of the allegations; that the second complaint is not ....,..
maintainable as the respondent suppressed the fact of first complaint.

Dismissing the appeal, the Court

HELD: I.I. There is no provision in Cr. P.C. or in any other statute
B which debars a complainant from preferring a second complaint on the same
allegations if the first complaint did not result in a conviction or acquittal or --.,.
even discharge. Section 300 Cr.P.C., which debars a second trial has taken
care to explain that "the dismissal of a complaint or the discharge of an
accused is not an acquittal for the purpose of this Section." However, when a
C magistrate conducts an inquiry under Section 202 Cr.P.C. and dismisses the
complaint on merits, a second complaint on the same facts cannot be made
unless there arc very exceptional circumstances. Even so, a second complaint
is permissible depending upon how the complaint happened to be dismissed at
the first instance. If the dismissal of the complaint was not on merit but on
default of the complainant to be present there is no bar in the complainant
D moving the Magistrate again with a second complaint on the same facts. But
ifthe dismissal of the complaint under Section 203 Cr.P.C. was on merits the
position could be different. 1710-F-G; 711-E]
y-
1.2. There is no force in the contention of the appellant that complainant
lacked bona fides since she suppressed the fact of dismissal of the first
E complaint. The second complaint was filed before the same Magistrate who
dismissed the first complaint and within a short interval. Even otherwise,
nothing would turn out from the mere fact that the complaint did not contain
an averment that the first complaint was dismissed for default. 1712-C-DI

Pramatha Nath Talukdar v. Saro) Ranjan Sarkar, AIR fl9621SC876,
F relied on.

Chandra Dea Singh v. Prakash Chandra Bose, AIR (1963) SC 1430,
referred to.

G CRIMINAL APPELLATE JURISDICTION Criminal Appeal
No. 121 of2001.

From the Judgment and Order dated 19.7.99 of the Punjab and Haryana
High Court in Crl. R. No.1141 of 1999.

H Ashok Saini. Rajesh K. Shanna, and Goodwill lndeevar for the Appellants.
.IATINDER SINGH v. RAN.JIT KAUR !THOMAS. J.] 709
K.G. Bhagat and R.K. Agnihotri for the Respondent. A
The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

The sole question is whether a complaint, once dismissed by a magistrate B
for default, can be refiled 9 Appellant, who is alleged to have married twice,
and that too with the sibling of the first spouse, is now aggrieved as the High
Court held that there is nothing illegal in filing a second complaint on the fact
situation.

Ranjit Kal!r, the undeterred con1plainant, felt beguiled by the appellant, C
whom she descdbed as her lawfu I husband, and her younger sister Raj want
-~· Kaur connived with him for performing a marriage between them clandestinely
during the time when Ranjit Kaur was enceinte. After the child was born to
her she filed the first complaint against Jati.nder Singh - the appellant. In the
complaint she arrayed the appellant as the first accused indicting him of the D
offence of bigamy (Section 494 IPC) and four others including her sister
Rajwani Kaur were arraigned for abetthlg the said offence (Section I 09 IPC). ·

The magistrate before whom she filed a complaint kept on waiting for
holding an inquiry under Section 202 of the Code of Criminal Procedure (for
short 'the Code'). It is a pity that a complaint filed by the respondent Ranjit E
Kaur before the Judicial Magistrate of First Class, Batala (Punjab) remained
in_ the incubation stage for nearly one year during which she had to appear
in the court on mariy occasions without the accused being called to appear.
Her statement was recorded on I 2.3. I992 and the statements of two of her
~ witnesses were recorded many inonths thereafter. But on 15.12. I 993, the
magistrate dismissed the complaint merely because she was not present F
inside the court when the case was called. Instead of taking up the matter to
higher courts Ranjit Kaur has chosen to file another complaint da!~:cn 5.2.1993
before the same magistrate containing the same allegations as stated in the
first complaint. However, the magistrate this time took cognisance of the
offence and issued process to the accused persons mentioned in the complaint. G

The appellant first filed a revision petition before the Sessions Court
after getting summons from the magistrate, but when he felt its maintainability
doubtful he withdrew the revision petition and moved the magistrate for
dismissal of the complaint on the sole ground that another complaint,
containing the same allegations, was dismissed earlier. The magistrate overruled H
710 SUPREME COURT REPORTS [2001] I S.C.R.

A his objections and proposed to proceed with the case, but the appellant ...,_
succeeded in stalling the proceedings as the Sessions Judge entertained a
revision petition once again filed by the appellant.

That revision was allowed by the Sessions Judge and there was a
temporary reprieve for the appellant from court proceedings. But the
B complainant, with alacrity, moved the High Court by a revision petition in
challenge of the order passed by the Sessions Judge. A learned Single Judge
of the High Coun of Punjab and Haryana, by a very short order, revived the
magistrate's order and upset the order passed by the Sessions Judge. It is
the said brief order passed by the Single Judge which the appellant has
C assailed now by special leave.
This is what the High Court has stated in the impugned order:

"The earlier complaint was dismissed on 2.12.1992 but not on merits.
It was dismissed in default. In those circumstances, the second
complaint was maintainable and rightly held by the Magistrate that
D
special reasons have been advanced in the second complaint."

Learned counsel for the appellants raised two contentions before us.
The first is, dismissal of the first complaint, whether for default or on merits,
has the same effect of exonerating the accused of the allegations and so long
E as that order remains, a second complaint is not maintainable in law. The other
contention is that the complainant in her second complaint suppressed the
fact that her first complaint was dismissed and hence the second complaint
should have been dismissed for want of bona fides.
~·
There is no provision in the Code or in any other statute which debars
F a complainant from preferring a second complaint on the same allegations if
the first complaint did not result in a conviction or acquittal or even discharge.
Section 300 of the Code, which debars a second trial, has taken care to explain
that "the dismissal of a complaint or the discharge of an accused is not an
acquittal for the purpose of this Section." However, when a magistrate conducts
G an inquiry under Section 202 of the Code and dismisses the complaint on
merits, a second complaint on the same facts cannot be made unless there
are very exceptional circumstances. Even so, a second complaint is permissible
depending upon how the complaint happened to be dismissed at the first
instance.

H Under Section 202 of the Code a magistrate is conducting an inquiry
.IA TINDER SINGH I'. RAN.Ill KAUR ITHOMAS. J.] 711
,,.....
+- before issuing the process lo the accused, for the purpose of determining A
whether "there is sufficient ground for proceeding". Section 203 of the Code
empowers him to dismiss a complaint after holding such inquiry if he is of
opinion that "there is no sufficient ground for proceeding". In that event he
has to record the reasons as to why he held that there is no sufficient ground
for proceeding, though he need not write an elaborate order. Section 203 of B
the Code reads thus:

"203. Dismissal of complaint.-. If, after considering the statements on
oath (if any) of the complainant and of the witnesses and the result
of the inquiry or investigation (if any) under section 202, the Magistrate
is of opinion that there is no stlffiGient ground for proceeding, he shall C
dismiss the complaint, and in every such case he shall briefly record
his reasons for so doing.''

A four Judge Bench of this Court said in Chandra Deu Singh v,
Prakash Chandra Bose, AIR ( 1963) SC 1430, as to the effect of not recording
reasons while dismissing a complaint under Section 203 of the Code. This is D
what the learned Judges said on that score: "The complainant is entitled to
know why his complaint has been dismissed with a view to consider an
approach to a revisional court. Being kept in ignorance of the reasons clearly
prejudices his right to move the revisional court and where he takes a matter
to the revisional court renders his task befofe that court difficult".
E
If the dismissal of the complaint was not on merit but on default of the
complainant to be present there is no bar in the complainant moving the
magistrate again with a second complaint on the same facts. But if the
dismissal of the complaint under Section 203 of the Code was on merits the
position c~uld be different. There appeared a difference of opinion earlier as F
to whether a second complaint could have been filed when the dismissal was
under Section 203. The controversy was settled by this Court in Pramatha
Nath Talukdar v. Saroj Ranjan Sarkar, AIR (I 962) SC 876. A majority of
Judges of the three Judge Bench held thus:

"An order of dismissal under S.203, Criminal Procedure Code, is, G
however, no bar to the entertainment of a second complaint on the
same facts but it will be entertained only in exceptional circumstances,
e.g., where the previous order was passed on an incomplete record or
on a misunderstanding of the nature of the complaint or it was
manifestly absurd, unjust or foolish or where new facts which could
not, with reasonable diligence, have been brought on the record in the H
712 SUPREME COURT REPORTS [2001) l-S.C.R.

previous proceedings, have been adduced. It cannot be said to _be in
the interest of justice that after a decision has been given against the
complainant upon a full consideration of his case, he or any other
person should be given another opportunity to have his complaint
enquired into."

B S.K. Das, J. (as he then was) while dissenting from the said majority
view had taken the stand that right of a complainant to file a-second complaint
would not be inhibited even by such considerations. But at any rate the
majority view is that the second complaint would be maintainable if the
dismissal of the first complaint was not on merits.
c We do not find much force in the next contention that the complainant
lacked bonafldes as he suppressed the fact of dismissal of the first complaint.
We cannot overlook the fact that the second complaint was filed before the<
same magistrate who dismissed the first complaint, and that too was done
within a short interval. Even otherwise, nothing would turn out from the mere
D · fact that the complaint did not contain an averment that the first complalrlt
was dismissed for default. __,. -

As the magistrate did not consider the materials on -record when he
dismissed the first complaint, instead the said course was adopted by him
only as a consequence of the default of complainant presenting herself when
E the case was called, there is no reason to shut the door before her once and
for all. The High Court has correctly interfered with the order of the Sessions
Court by restoring the complaint and the proceedings initiated thereon. We
therefore dismiss this appeal.

B.S. Appeal dismissed.