J.M. Srivastava, J.
1. This revision is directed against the judgment and order dated 20-2-85 passed by the Judicial Magistrate 2nd class Hailakandi whereby the petitioner's complaint was dismissed.
2. The petitioner had earlier filed a complaint on the allegations that on 15-6-84 while he was collecting tolls in the market, settled with him the accused persons in a body armed with lethal weapons prevented the complainant from collecting tolls from the market and assaulted him, The learned Magistrate after enquiry, then had dismissed the complaint. The complainant then filed the present complaint and after hearing the parties the learned Magistrate by the impugned judgment and order held that in so far as the allegations are concerned the same were correct but that since the earlier complaint case No. 649/84 had been dismissed by order dated 23-6-84 the subsequent complaint could not be entertained. No exceptional circumstances were proved by the complainant which may warrant the entertainment of the second complaint. The complaint was dismissed and the accused persons acquitted.
3. Aggrieved, the complainant has come to this Court and Mr. A. K. A. Laskar, learned Counsel appearing on his behalf submits that the learned trial court has grievously erred in holding that in view of the dismissal of the earlier complaint the second complaint could not be entertained. In this connection Mr. Laskar has pointed out that even though the allegations in the complaint were correct and proved yet the learned trial Court had dismissed the complaint. On the other hand, Mr. N. Mohammad, learned Counsel for the opposite parties, has submitted that the earlier complaint having been dismissed on merit by order dated 23-6-84 and no exceptional circumstances having been made out for entertainment of the second complaint the learned Magistrate was justified and correct in dismissing the complaint. Mr. Mohammad has relied upon Pramatha Nath v. Saroj Ranjan : AIR1962SC876 where the Supreme Court has observed that:
There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under Section 203 of the Code of Criminal Procedure. As, however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint, when a previous complaint on the same allegations was dismissed under Section 203. The test to determine the exceptional circumstances are (1) manifest error, (2) manifest miscarriage of justice, and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. Any exceptional circumstances coming within any one or more of the aforesaid three categories would fulfil the test. All these three may be reduced to a single test thus : Whenever a Magistrate is satisfied that the previous order of dismissal was due to a manifest error or has resulted in a miscarriage of justice, he can entertain a second complaint on the same allegations even though an earlier complaint was dismissed under Section 203 of the Code of Criminal. Procedure.
4. The question therefore in the present case is whether there was miscarriage of justice or whether exceptional circumstances exist for which the subsequent complaint could be entertained.
5. The order dated 23-6-84 whereby the complaint case No. 649/84 was dismissed runs as follows:
Complainant present. From the examination of C.W. Sontosh Kumar Nath and on enquiry it is found that the complainant failed to make out a prima facie case against the accused named by him. Hence, the complaint is dismissed under Section 203 Cr. P.C.
6. Mr. N. Mohammed, learned Counsel for the opposite parties urged that the earlier complaint having been dismissed on merits on the same facts and circumstances the second complaint is also without any merit and it was rightly dismissed by the learned Magistrate. I am not inclined to accept this submission for the reason that the learned court in the impugned judgment has held that the complainant was assaulted by the opposite parties which in my opinion, clearly shows that there was miscarriage of justice, in the dismissal of the earlier complaint which should be considered as an exceptional circumstance to warrant entertainment of the subsequent complaint.
7. For the aforesaid reasons I am satisfied that the impugned order is erroneous and should be set aside. The petition is allowed. The impugned order is set aside. The matter is remitted to the learned trial court for fresh consideration in accordance with law after giving the parties fresh opportunity to be heard.