Judgment:
M.L. Koul, J.
1. The petitioner Sham Lal has approached this Court within the ambit of Section 482 of the Code of Criminal Procedure for quashing of a criminal complaint Annexure P. 1 and the subsequent orders of cognizance and issuance of summons by the learned Additional Chief Judicial Magistrate, Patiala, against him on the ground that earlier two complaints filed by the respondent-complainant were dismissed in default by the said Court and thus the petitioner is deemed to have been acquitted within the ambit of Section 256 of the Code of Criminal Procedure.
2. It is a fact that two complaints of the respondent-complainant were dismissed in default on 10-9-1986 and 25-2-1987 resulting into the acquittal of the petitioner for the offences for which he was being tried in a summons case. On the third complaint moved on the very facts involved in the earlier two complaints the learned Additional Chief Judicial Magistrate, Patiala, summoned the petitioner for an offence under Section 500 of the Indian Penal Code. The petitioner moved an application before the trial Court contending therein that the present complaint was liable to be dismissed for it was moved on the same facts on which the earlier two complaints were dismissed and the petitioner was deemed to have been acquitted for an offence under Section 500 of the Indian Penal Code. The argument did not prevail upon the learned Trial Court who disposed of the application with an observation that there is no provision under the Code of Criminal Procedure which empowers a Magistrate to review on recall a judicial order passed by him. He thus dismissed the application of the petitioner and proceeded with the case.
3. Heard learned counsel for the parties and went through the record on the file.
4. Learned counsel for the parties are well aware that the trial of summons cases by Magistrates is provided under Chapter XX of the Code of Criminal Procedure as to how the trial of the summons cases is to be conducted by the Magistrates. Section 256 of the Code of Criminal Procedure envisages that after the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.
5. On simple interpretation of Section 256 of the Code of Criminal Procedure, one can easily say that in a summons case after the accused is summoned and the complaint is fixed for a date by the Magistrate for the appearance of the accused and the complainant does not appear, the Magistrate has no option except to dismiss the complaint and acquit the accused unless for some reasons recorded by the Magistrate the case is adjourned to some other day.
6. In the instant case the complainant remained absent on 10-9-1986 resulting in dismissal of the complaint and consequently acquittal of the accused. Then the other complaint filed by the complainant met the same fate on 25-2-1987. Undaunted the complainant endeavoured to file third complaint before the Additional Chief Judicial Magistrate who without application of mind least caring to know that the carbon complaints of the same nature were already dismissed and the petitioner-accused deemed to have been acquitted proceeded in the matter, to the disadvantage of the petitioner who was third time summoned to face the trial in a dismissed complaint. The callous way in which the Additional Chief Judicial Magistrate, Mr. H.R. Noharia, proceeded in the matter is quite deprecatable as to how he took cognizance of the case when it was vividly mentioned in the complaint Annexure P-1 that the two complaints of the complainant which were proto type in context and substance stood already dismissed and the petitioner was deemed to have been acquitted.
7. It has been held in Bhagat Ram'ASI v. State of Punjab, reported as 1987 (2) CLR 329 by his Lordship Hon'ble Justice M.M. Punchhi (now Judge of Hon'ble Supreme Court) that 'it is the admitted position that when the earlier complaint was dismissed for offence under Section 323, Indian Penal Code, it tantamounted to an acquittal, Sequely, it follows that the petitioner could not be summoned on a fresh complaint on the same grounds. In this view of the matter the proceedings against the petitioner are nothing but an abuse of the process of the Court.
8. The said ruling on all fours has a bearing over the merits of this case and it is found that the Magistrate has tantamountly proceeded illegally and abused his powers in summoning the petitioner who twice was acquitted by the said Courts. It shows the legal bankruptcy of the said Magistrate in having proceeded in the matter third time upon the same facts of the case. As such the complaint along with other proceedings taken on it arc quashed and the petition is allowed accordingly.
9. Let a copy of the order be sent to Shri H.R. Noharia, the then Additional Chief Judicial Magistrate wherever he is posted to explain his position in the matter.