Mon Mohan De Accused, v. Surabala Dasi Complainant, Opposite Party.

The Judgment of the Court was as follows:—

Walmsley, J.:— This Rule was obtained by one Mon Mohun De, the Respondent in a proceeding under sec. 488, C. Cr. P. It appears that, on the 11th November last year, the Opposite Party made an application to the Chief Presidency Magistrate under that section and on that a Rule was issued. After some adjournments, the matter was transferred to the Honorary Magistrate, Mr. Rustomji, for disposal and in his Court the present Petitioner and the woman the Opposite Party and the child were examined. Then there were frequent adjournments for one cause or another and eventually, on the 3rd April 1919, the Rule was discharged on the ground that there were no witnesses for the prosecution present. On the 10th April 1919 the woman made a fresh application before the Chief Presidency Magistrate and a Rule was again issued upon the present Petitioner and the proceedings instituted on that Rule are now pending. We have been asked to quash, those proceedings and the ground on which it is suggested that we should do so is that, after the Rule had been discharged by Mr. Rustomji, the woman had no right to make a second application under sec. 488, C. Cr. P., and that the Magistrate erred in granting a Rule. Our attention has been drawn to the case of Hakimi Jan Bibi v. Mouze Ali (1), and to an unreported case. It appears to me that those cases may be distinguished on a very important ground, namely, that in them evidence was gone into and there was an adjudication by the Magistrate as to the paternity of the child. That is a very broad distinction. In the present case, the Magistrate, Mr. Rustomji, did not purport to come to any conclusion as to whether the child is or is not the son of the present Petitioner. In my opinion, when the first Rule was discharged by Mr. Rustomji, it remained open to the woman to make a fresh application and the Magistrate was not in error in issuing a Rule on this fresh application. I think, therefore, the present Rule should be discharged and the Magistrate directed to go on with the present proceedings.

Shamsul Huda, J.:— I agree. There is no provision in the Criminal Procedure Code which bars a second application under sec. 488 of that Code. The only section to which reference may be made in support of the contention that such an application is incompetent is sec. 403, not that the section applies in terms to proceedings under sec. 488 but that a principle similar to that underlying sec. 403 may be applied by analogy to cases of this kind. If we refer to that section, we find that in the explanation appended to it, it is stated that the dismissal of a complaint would be no bar to a trial on a fresh complaint and that principle may be applied to this case. In this case, the complaint under sec. 488, C. Cr. P., was dismissed for default and there was no adjudication regarding the merits. I do not think, therefore, there is anything in the law which prevents that second application from being proceeded with.

S.C.M

Rule discharged.