JUDGMENT
Narendra Kumar Jain, J.
1. Heard learned Counsel for the parties. Briefly stated the facts of the case are that complainant-petitioner filed a complaint, which was forwarded for investigation under Section 156(3) of the Code of Criminal Procedure, wherein, after investigation of the case, final-report was given. It appears that a notice was given to the complainant but he did not appear and the final-report was accepted. Subsequently, the complainant filed second complainant wherein the statements of complainant and his witnesses were recorded under Sections 200 and 202 of the Code of Criminal Procedure and, on that basis, the learned Civil Judge (Junior Division) & Judicial Magistrate, 1st Class, Udaipurwati, took cognizance against the accused-nonpetitioners No. 1 to 3 for the offence under Sections 342, 330 and 467 of the Indian Penal Code. The said order was challenged by the accused-non-petitioners by way of revision petition before the Sessions Judge, Jhunjhunu, which was allowed by the learned Additional Sessions Judge, Jhunjhunu, vide order dated 05.05.2005 and the order of the trial court taking cognizance was set-aside. Hence, this revision petition has been preferred on behalf of the complainant.
2. It is contended on behalf of the petitioner that the revisional court has committed an illegality in allowing the revision petition of the accused-persons only on the ground that he was debarred from filing the second complaint after acceptance of the final-report, whereas law is settled that second complaint is not barred and the same was rightly entertained by the learned trial court and on the basis of new and additional evidence on the record, the cognizance was taken by the trial court. The revisional court committed an illegality in interfering in the order of the trial court taking cognizance and such order passed by the revisional court is liable to be set aside.
3. The learned Counsel for the accused-nonpetitioners supported the order passed by the revisional court and contended that second complaint was filed on the basis of same facts, therefore, the revisional court rightly set-aside the order of the trial court taking cognizance against them and there is no merit in this revision petition and the same is liable to be dismissed.
4. I have considered the submissions of the learned Counsel for both the parties and also the impugned order as well as the record of the courts below.
5. It appears that earlier a final-report was given by the prosecution and a notice was given to the complainant-petitioner by the trial court before acceptance of the final-report, but he was not present in spite of service of notice, therefore, the final-report was accepted on 23.07.2003. Subsequently, the second complaint was filed by the complainant-petitioner wherein, in Para No. 6 thereof, he alleged that he is an illiterate person and his thumb impression was got by the Investigating Officer on the notice given by the trial court before acceptance of the final-report on the pretext that he is filing challan against the accused- persons, therefore, he put his signatures and did not attend the case. When he came to know that no charge- sheet has been filed against the accused-persons then he immediately contacted his counsel and filed the present complaint wherein he examined himself under Section 200, Cr.P.C. and also examined his witnesses, and, on the basis of evidence available on the record, the trial court took cognizance against the accused-persons.
6. The Hon’ble Supreme Court in the case of Mahesh Chand v. B. Janardhan Reddy 2003 Cri.L.J. 866, in Para No. 12 of the judgment, observed that there cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition, but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. Further, in Para No. 19 of the judgment, the Hon’ble Apex Court observed that keeping in view the settled legal principles, as their Lordships were of the opinion, that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204, Cr.P.C., may take cognizance of an offence and issue process if there is sufficient ground for proceeding.
7. The revisional court, in the impugned order, has assigned reason for setting-aside the order of the trial court taking cognizance that after acceptance of the final-report by the trial court, the complainant could not have filed the second complaint and it was not within the jurisdiction of the trial court to take cognizance. I find that the reasons assigned by the learned revisional court are absolutely illegal and cannot be allowed to sustain. The second complaint filed by the complainant- petitioner was maintainable and there was additional evidence available in the case by way of statements recorded under Section 200 and 202 of the Cr.P.C., for taking cognizance by the trial court. The order of the trial court taking cognizance is self-speaking and detailed one and there was no reason for the revisional court to interfere in it. The revisional court committed an illegality in setting-aside the order of the trial court taking cognizance.
8. Consequently, the revision petition is allowed. The impugned judgment/order dated 05.05.2005 passed by the learned Additional Sessions Judge, Jhunjhunu, in Criminal Revision Petition No. 17/04 (252/03) is set-aside and the order dated 09.10.2003 of the trial court taking cognizance is restored.
9. The accused-non-petitioners No. 1 to 3 are directed to appear before the trial court i.e. Civil Judge (Junior Division) & Judicial Magistrate, 1st Class, Udaipurwati, on 10th of March, 2008.
10. The trial court is directed to proceed further with the case in accordance with the law.