TMI Blog2004 (10) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of his case. Further second complaint on the same facts would be entertained only in exceptional circumstances, namely, where previous order was passed on an incomplete record or on misunderstanding of the complaint or it was manifestly absurd or unjust. Question is academic as the High Court did not interfere with the order passed by the Additional Sessions Judge on the ground that the revision was not maintainable in view of the prescription in Section 397(2) of the Code. Undisputedly, in a given case Section 482 of the Code can be pressed into service. It was held by this Court in Pramatha Nath s case (1961 (11) TMI 63 - SUPREME COURT OF INDIA) . Further, in Subramanium s case (2004 (9) TMI 605 - SUPREME COURT) as noted above, it was observed that issuance of process is a preliminary step in the stage of trial. - As the High Court has not considered the legality of the order directing issuance of process keeping in view the law laid down by this Court, we feel it would be proper to remit the matter to the High Court to record positive findings on the relevant issues. - Decided in favour of appellant. - CRL.A. 371 OF 2004 - - - Dated:- 15-10-2004 - ARIJIT PASAYAT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge was justified and the High Court should not have interfered with it. It was pointed out with reference to various averments in the first complaint filed on 10.7.1992 and the second one filed on 25.11.1997 that both are founded on the same allegations. The averments were merely repeated and, therefore, no case for entertaining the second complaint was made out. That being so, the issuance of process was illegal and the learned Additional Sessions Judge had rightly interfered with it. The High Court was not justified in saying that present appellant should seek discharge in terms of Section 245 of the Code. It was submitted that though the second complaint can be entertained, the same has to be on establishing exceptional circumstances and not as a matter of routine. In response, learned counsel for the respondent submitted that it is not correct to contend as done by the appellants that the averments were mere repetitions. Different persons were arrayed as accused in the complaint and the alleged offences were different. A birds eye view of some of the decisions throwing light on the controversy needs to be taken. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which he had earlier discharged the accused person. Nilratan Sen s case (ILR (1896) 23 Cal 983) and Kamal Chandra Pal s case (ILR (1897) 24 Cal 286) were referred to in the arguments as summarized in the report, but the view expressed therein was not accepted. Dealing with the question Prinsep, J. said: There is no bar to further proceedings under the law, and therefore, a Magistrate to whom a complaint has been made under such circumstances, is bound to proceed in the manner set out in S. 200, that is, to examine the complaint, and, unless he has reason to distrust the truth of the complaint, or for some other reason expressly recognized by law, such as, if he finds that no offence had been committed, he is bound to take cognizance of the offence on a complaint, and unless he has good reason to doubt the truth of the complaint, he is bound to do justice to the complainant, to summon his witnesses and to hear them in the presence of the accused. The same view was expressed by the Madras High Court Malayil Kottayil Koyassan Kutty, In re (AIR 1918 Mad 494) and it was observed that there was nothing in law against the entertainment of a second complaint on the same facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree categories; (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. In Ram Narain v. Panachand Jain (AIR 1949 Pat 256) it was observed that an exhaustive list of the exceptional circumstances could not be given though some of the categories were mentioned. One new category mentioned was where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. This new category would perhaps fall within the category of manifest error or miscarriage of justice. It appears to me that the test laid down in the earliest of the aforesaid decisions. Queen Empress v. Dolegobinda Dass is really wide enough to cover the other categories mentioned in the later decisions. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad s case (supra) held: Therefore, we are of opinion that the view of this Court in Mathew s case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law. From the above, it is clear that the larger Bench of this Court in Adalat Prasad s case (supra) did not accept the correctness of the law laid down by this Court in K.M. Mathew s case (supra). Learned counsel for the respondent submitted that the order to issue process is an interlocutory order, and therefore revision before the Additional Sessions Judge was not maintainable. Learned counsel for the appellants with reference to certain observations in Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. (1993 (3) SCC 134) and K.K. Patel and Anr. v. State of Gujarat and Anr. (2000 (6) SCC 195) submitted that this Court has held that issuance of process or charges is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code, or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act. This case was following in the case of Mohd. Amin Bros. v. Dominion of India (AIR 1950 SC 139) where it was held that so far as this Court is concerned the principles laid down in S.Kuppuswami Rao v. King (AIR 1949 FC 1) settled the law. In this connection, in the aforesaid case, Mukherjea, J., speaking for the Court observed as follows: The expression final order has been used in contradistinction to what is known as interlocutory order and the essential test to disting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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