Allahabad High Court
Mohammad Mushfik (In Fir Mushfik Urf … vs State Of U.P. Thru. Prin. Secy. Home Lko. … on 3 April, 2026
Author: Abdul Moin
Bench: Abdul Moin, Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL MISC. WRIT PETITION No. - 2777 of 2026 Mohammad Mushfik (in Fir Mushfik Urf Sanju) ..Petitioner(s) Versus State of U.P. Thru. Prin. Secy. Home Lko. and others ..Respondent(s) Counsel for Petitioner(s) : Ashish Kumar Singh, Manish Vaish Counsel for Respondent(s) : G.A., Court No. - 11 HON'BLE ABDUL MOIN, J.
HON’BLE PRAMOD KUMAR SRIVASTAVA, J.
1. Sri Anil K. Tripathi, Advocate has filed his Vakalatnama on behalf of the petitioner, which is taken on record. After arguing at some length he states that he would like the previous counsel Sri Manish Vaish to argue the matter and thus the baton of argument has been passed on to Sri Manish Vaish.
2. We fail to understand this tactic on the part of lawyers of changing counsels mid way.
3. Be that as it may, we have heard Sri Manish Vaish, learned counsel for the petitioner and learned A.G.A. appearing for the State.
4. Under challenge is the First Information Report (hereinafter referred to as F.I.R.) dated 01.03.2026 bearing First Information Report No. 189/2026, under Sections 419, 420, 467, 468 and 471 of Indian Penal Code (hereinafter referred to as I.P.C.), Police Station Kotwali Nagar, District Gonda.
5. Learned counsel for the petitioner submits that in the year 2020, the Executive Officer of the Municipal Corporation, Gonda had lodged a F.I.R. dated 07.12.2020 bearing F.I.R. No. 955/2020, under Sections 419, 420, 467, 468, 471 and 409 I.P.C., Police Station Kotwali Nagar against Vipin Prakash Srivastava (Clerk of Municipal Corporation). After concluding the investigation, a charge-sheet had been filed against accused persons, namely, Vipin Prakash Srivastava and Ankit Srivastava (a bank employee). In the said F.I.R., irregularities regarding misappropriation of Provident Fund during the year 2017 were alleged.
6. Learned counsel for the petitioner further submits that respondent No. 4 moved an application under Section 156(3) Cr.P.C. before the Magistrate seeking registration of the F.I.R. against the petitioner, which was rejected vide order dated 25.06.2024 on the basis of preliminary inquiry report. Being aggrieved by the order dated 25.06.2024, respondent No. 4 preferred a Criminal Revision No. 358/2024::Ayesha Begum Vs. Mohammad Mushfik @ Sanju . The revisional court admitted the revision and consequently quashed the order dated 25.06.2024 passed by learned Magistrate under Section 156(3) of Cr.P.C. and also directed the trial court to pass a fresh order after hearing both the parties. On the date fixed for hearing applicant/respondent No.4 did not appear before the learned Magistrate, therefore, application under Section 156(3) Cr.P.C. was dismissed for want of prosecution on 29.07.2025. Subsequently, applicant/respondent No. 4 filed another application under Section 173(4) of the BNSS, 2023 (Corresponding Section 156(3) of Cr.P.C.), resulting learned Magistrate vide order dated 04.02.2026 allowed the application and directed police for registration of the F.I.R. against the petitioner.
7. Learned counsel for the petitioner next submits that grievances of respondent No.4 had already been covered by previous F.I.R. lodged on 07.12.2020. He further submits that at the relevant time, the petitioner was posted as a Clerk and he had performed his duties properly, so that Provident Fund of the employees could be deposited in their Provident Fund Account and if some amount have been withdrawn in an authorized manner, then the matter rests between account holder and bank, for which the petitioner has no concern.
8. Learned counsel for the petitioner further submits that in the first inquiry report, no allegation was found against the petitioner; therefore, subsequent order dated 04.02.2026 passed by the learned Magistrate, without affording an opportunity of hearing to the petitioner, is illegal. Consequently, the subsequent F.I.R. is liable to be quashed, and the police be directed not to arrest the petitioner or take any coercive measures against him.
9. The other ground taken by learned counsel for the petitioner is that when the earlier application filed under Section 156(3) Cr.P.C. was dismissed for non-prosecution vide order dated 29.07.2025 the impugned FIR being lodged on the basis of second application filed under Section 156(3) Cr.P.C. (now Section 173(4) of BNSS 2023) by respondent no.4 was clearly not maintainable. Elaborating the same, the argument is that it was open for respondent no.4 to have applied for setting aside the order by which the earlier application under Section 156(3) Cr.P.C. had been dismissed for non-prosecution but the second application was clearly not maintainable and consequently the impugned FIR having been lodged on the basis of the same merits to be set-aside on this ground alone.
10. Elaborating the first ground, the argument is that where first F.I.R. was lodged and all the allegations were covered, then subsequent F.I.R. could not be lodged for the same incident. In support of his argument learned counsel for the petitioner has placed reliance on the judgment passed by Honble Apex Court in the cases of Arnab Ranjan Goswami Vs. Union of India and others (2020) 14 SCC 12; Babubhai Vs. State of Gujarat and others (2010) 12 SCC 254; Amitbhai AnilChandra Shah Vs. Central Bureau of Investigation and another (2013) 6 SCC 348 and T.T.Antony Vs. State of Kerala and others (2001) 6 SCC 181.
11. Per contra, learned A.G.A. vehemently contends that in the first F.I.R., the matter of opposite party No. 4 was neither investigated, nor she was afforded any opportunity to give her statement before the Investigating Officer. He further submits that a subsequent F.I.R. is not barred where there is a different allegation and which is not a consequence of the first F.I.R.; otherwise, the ends of justice would be victimized. He also submits that no investigation was conducted with regard to the role of the present petitioner, and therefore, he could not take the shelter of the first F.I.R. Accordingly, the present petition is vague, misconceived, devoid of merit, and liable to be dismissed.
12. Having heard learned counsel for the parties, on perusal of material on record it reveals that earlier F.I.R. bearing F.I.R. No. 955/2020 was lodged by the complainant Vikas Sain (the then Executive Officer) against Vipin Prakash Srivastava under Sections 419, 420, 467, 468, 471 and 409 I.P.C., stating that accused Vipin Prakash Srivastava, who was posted Bill Clerk/Health Clerk was not producing complete records of the Provident Fund relating to the employees of Municipal Corporation, Gonda. Vipin Prakash Srivastava was suspended for tampering the records, thus there was no averment made in F.I.R. with regard to claim of the respondent No.4. It is admitted by the petitioner that the charge-sheet has been filed against Vipin Prakash Srivastava and Ankit Srivastava and the trial is going on.
13. Thereafter, respondent No.4-Smt Ayesha Begum moved an application under Section 156(3) of the Cr.P.C. before the Magistrate concerned, stating that she was posted as a Peon in the Municipal Corporation and out of her Provident Fund, different amounts were withdrawn on different dates, after making a false entry, fabricating the forged document and in the application the cheque period was stated 02.03.2017, 15.03.2027 and 16.03.2017 and thus Rs. 1,50,000/- was withdrawn from the Provident Fund account of the respondent No.4.
14. On the basis of a preliminary inquiry report submitted by the Bank of India, the application under Section 156(3) Cr.P.C. was dismissed on 25.06.2024. This order was assailed in Criminal Revision No. 358/2024, wherein the learned Additional Sessions Judge allowed the revision and directed the concerned Magistrate to pass a fresh order in accordance with law after hearing both parties. On the date fixed for hearing, applicant/respondent No.4 did not appear before the concerned court, hence application under Section 156(3) of the Cr.P.C. was dismissed for want of prosecution on 29.07.2025. Thereafter, Respondent No. 4 moved a fresh application under Section 173(4) of the BNSS (Corresponding Section 156(3) of Cr.P.C.) against the petitioner, disclosing that the previous application was dismissed due to her non-appearance. Upon hearing the said application, the learned Magistrate, vide order dated 04.02.2026, directed to the police for registration of an FIR against the accused persons. Consequently, FIR No. 189/2026 was registered at Police Station Kotwali Nagar, District Gonda, under Sections 419, 420, 467, 468, and 471 of the I.P.C.
15. Now question arises that whether subsequent impugned F.I.R. can be lodged?
16. In this regard in the case of State of Rajasthan Vs. Surendra Singh Rathore 2025 SCC OnLine SC 358 Honble Apex Court held that where the incident is separate, offences are similar or different or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the F.I.R. recorded first, then second F.I.R. could be registered.
In the above case Honble Apex Court has cited the case of Upkar Singh Vs. Ved Prakash (2004) 13 SCC 292, wherein T.T. Antony Vs. State of Kerala (2001) 6 SCC 181 has been discussed and it was observed in paragraph No. 23 of Upkar Singh (supra) as under:
Be that as it may, if the law laid down by this Court in T.T. Antony case [(2001) 6 SCC 181: 2001 SCC (Cri) 10481 is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
17. In Surendra Singh Rathore (supra) Honble Apex Court also discussed the case of BabuBhai Vs. State of Gujarat (2010) 12 SCC 254 wherein it is observed that in case where the version in the second F.I.R. is different and they are in respect of the two different incidents/crimes, the second F.I.R. is permissible and referred to the observation made in paragraph No. 67 of Nirmal Singh Kahlon Vs. State of Punjab (2009) 1 SCC 441 as under:
67. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.”
After concluding the case laws referred in the said judgment Honble Apex Court summarize at point 9.2, when the ambit of the two FIRs is different even though they may arise from the same set of circumstance, then registration of the second F.I.R. is permissible.
18. In view of the above, on perusal of the material available on record, it reflects that in the F.I.R. which was registered in the year 2020 there was no averment with regard to involvement of the petitioner in respect of claim of respondent No.4 relating to irregularities and illegal transaction of the Provident Fund of the respondent No.4, and she was not afforded opportunity of hearing during the course of investigation, thus allegation regarding her claim was not dealt with in previous F.I.R. and investigation. Apart from this, the subsequent F.I.R. is not consequence of the first F.I.R. although it is true that no fresh investigation on receipt of every information in respect of same cognizable offence can be conducted, but if two F.I.R.s pertain to two different incidence/crimes, second F.I.R. is permissible.
19. Learned counsel for the petitioner argues that in the matter of Arnav Ranjan Goswami (supra) there was multiple F.I.R. with regard to particular incident, therefore, Honble Apex Court quashed all the proceedings other than one F.I.R., but the fact of the present case is different from the case referred as in Arnav Ranjan Goswami (supra), news and views was discussed and TV shows with respect to particular incident, which happened in Maharashtra and for the same incident several F.I.R.s in other region had been lodged, but in the case in hand, the Provident Fund was misappropriated through fabricating the documents and it was withdrawn in different time period without the knowledge of the holder of the account and for that account holder has made allegations against the petitioner of this case, whose role was not investigated in the earlier F.I.R. which was lodged in the year 2020, therefore, it cannot be said that subsequent F.I.R. could not be lodged pertaining to different check period, as observed by the Honble Apex Court in the latest judgment of Surender Singh Rathore (supra) that if the claim of the petitioner was not investigated in previous F.I.R. then subsequent F.I.R. could be lodged for the same set of circumstances, therefore, the ground taken by the petitioner is not tenable.
20. As regards the ground that the second application under Section 156(3) Cr.P.C. was not maintainable, the earlier application under Section 156(3) Cr.P.C. having been dismissed for non-prosecution, the said ground is also found to be patently misconceived and is rejected.
21. In this regard, it would be apt to refer to the judgment of Honble Supreme Court in the case of Subrata Choudhury @ Santosh Choudhury vs The State Of Assam- 2024 INSC 834 wherein Honble Supreme Court has held as under:-.
24. In Samta Naidu v. State of Madhya Pradesh, this Court considered all the relevant decisions including Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, Jatinder Singh v. Ranjit Kaur, Poonam Chand Jain v. Farzu, and Shivshankar Singh’s case (supra) in regard to the moot question involved, in paragraphs 12 to 12.3, 12.5, 13 and 16 thereunder. The said paragraphs, insofar as they are relevant to this case, are as under:
12. The law declared in Talukdar has consistently been followed, for instance, in Bindeshwari Prasad Singh v. Kali Singh it was observed : (Bindeshwari Prasad Singh case, SCC p. 59, para 4)
4. it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.
(emphasis supplied)
The view taken in Bindeshwari was followed in A.S. Gauraya v. S.N. Thakur.
12.1. In Jatinder Singh v. Ranjit Kaur the issue was whether the first complaint having been dismissed for default, could the second complaint be maintained. The matter was considered as under : (SCC pp. 572-74, paras 9 & 12)
9. There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. However, when a Magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance.
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12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, (1962) 1 Cri LJ 770. A majority of Judges of the three-Judge Bench held thus : (AIR p. 899, para 48)
48. An order of dismissal under Section 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint inquired into.
(emphasis supplied)
S.K. Das, J. (as he then was) while dissenting from the said majority view had taken the stand that right of a complainant to file a second complaint would not be inhibited even by such considerations. But at any rate the majority view is that the second complaint would be maintainable if the dismissal of the first complaint was not on merits.
(emphasis supplied)
12.2. In Ranvir Singh v. State of Haryana Haryana, the issue was set out in para 23 of the decision and the discussion that followed thereafter was as under : (SCC p. 647, paras 23-26)
23. In the instant case, the question is narrowed down further as to whether such a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in the process fees for effecting service.
24. The answer has been provided firstly in Pramatha Nath Talukdar case, wherein this Court had held that even if a complaint was dismissed under Section 203 CrPC, a second complaint would still lie under exceptional circumstances, indicated hereinbefore. The said view has been consistently upheld in subsequent decisions of this Court. Of course, the question of making a prayer for recalling the order of dismissal would not be maintainable before the learned Magistrate in view of Section 362 CrPC, but such is not the case in these special leave petitions.
25. In the present cases, neither have the complaints been dismissed on merit nor have they been dismissed at the stage of Section 203 CrPC. On the other hand, only on being satisfied of a prima facie case, the learned Magistrate had issued process on the complaint.
26. The said situation is mainly covered by the decision of this Court in Jatinder Singh case, wherein the decision in Pramatha Nath Talukdar case was also taken into consideration and it was categorically observed that in the absence of any provision in the Code barring a second complaint being filed on the same allegation, there would be no bar to a second complaint being filed on the same facts if the first complaint did not result in the conviction or acquittal or even discharge of the accused, and if the dismissal was not on merit but on account of a default on the part of the complainant.
(Underline supplied)
12.3. In Poonam Chand Jain v. Fazru the issue whether after the dismissal of the earlier complaint had attained finality, could a second complaint be maintained on identical facts was considered as under : (SCC pp. 634-36, paras 14-20)
14. In the background of these facts, the question which crops up for determination by this Court is whether after an order of dismissal of complaint attained finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal.
15. Almost similar questions came up for consideration before this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar. The majority judgment in Pramatha Nath was delivered by Kapur, J. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short the Code) is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as:
(a) where the previous order was passed on incomplete record, or
(b) on a misunderstanding of the nature of the complaint, or
(c) the order which was passed was manifestly absurd, unjust or foolish, or
(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
16. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. (para 50, p. 899)
17. This question again came up for consideration before this Court in Jatinder Singh v. Ranjit Kaur. There also this Court by relying on the principle in Pramatha Nath held that here is no provision in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are exceptional circumstances. This Court held in para 12, if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in filing a second complaint on the same facts. However, if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different.
19. Again in Mahesh Chand v. B. Janardhan Reddy, a three-Judge Bench of this Court considered this question in para 19 at p. 740 of the Report. The learned Judges of this Court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand this Court relied on the ratio in Pramatha and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha were reiterated. Therefore, this Court holds that the ratio in Pramatha Nath is still holding the field. The same principle has been reiterated once again by this Court in Hira Lal v. State of U.P. In para 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand discussed hereinabove.
20. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the knowledge of the first complainant. In fact, such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath. In that view of the matter the second complaint in the facts of this case, cannot be entertained.
(emphasis supplied)
12.4..
12.5. In Ravinder Singh v. Sukhbir the matter was considered from the standpoint whether a frustrated litigant be permitted to give vent to his frustration and whether a person be permitted to unleash vendetta to harass any person needlessly. The discussion was as under : (SCC pp. 258-60, paras 26-27 & 33)
26. While considering the issue at hand in Shivshankar Singh v. State of Bihar this Court, after considering its earlier judgments in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, Jatinder Singh v. Ranjit Kaur, Mahesh Chand v. B. Janardhan Reddy and Poonam Chand Jain v. Fazru held : (Shivshankar Singh case, SCC p. 136, para 18)
18. it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.
27. In Chandrapal Singh v. Maharaj Singh this Court has held that it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by enabling them to invoke the jurisdiction of criminal courts in a cheap manner. In such a fact situation, the court must not hesitate to quash criminal proceedings.
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33. The High Court has dealt with the issue involved herein and the matter stood closed at the instance of Respondent 1 himself. Therefore, there can be no justification whatsoever to launch criminal prosecution on that basis afresh. The inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint.
25. After referring to the aforesaid decisions in Samta Naidu‘s case (supra) this Court further, held in Paragraph 13 thus:
13. The application of the principles laid down in Talukdar in Jatinder Singh shows that a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. It was further laid down that: (Jatinder Singh case, SCC p. 573, para 12)
12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different.
To similar effect are the conclusions in Ranvir Singh and Poonam Chand Jain. Para 16 of Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on almost identical facts which were raised in the first complaint would not be maintainable. What has been laid down is that if the core of both the complaints is same, the second complaint ought not to be entertained.
(underline supplied)
26. It was further held in paragraph 16 of the decision in Samta Naidu‘s case (supra) thus:
16. As against the facts in Shivshankar, the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Talukdar as explained in Jatinder Singh and Poonam Chand Jain. The High Court was thus not justified in holding the second complaint to be maintainable.
22. From perusal of the judgment of Honble Supreme Court in the case of Subrata Choudhury (supra) it emerges that the Honble Supreme Court after placing reliance on the earlier judgment of Samta Naidu and another vs. State of M.P. and another 2020(5) SCC 378 has held that there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts if the dismissal of the complaint was not on merit but on default of the complainant to be present.
23. In the instant case admittedly the first complaint under Section 156(3) Cr.P.C. was dismissed for non-prosecution on 29.07.2025. The second application under Section 156(3) Cr.P.C. has been filed on 04.08.2025. Copy of the said complaint is Annexure-7 to the writ petition. Perusal of the said complaint specifically indicates that disclosure was made by the complainant of having earlier filed an application under Section 156(3) Cr.P.C. but the same having been dismissed for non-prosecution on 29.07.2025. Thus, the second complaint would clearly be maintainable keeping in view the law laid down by Honble Supreme Court in the cases of Subrata Choudhury (supra) and Samta Naidu (supra). Hence, the said ground is also rejected.
24. Keeping in view the aforesaid discussion, the writ petition is dismissed.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
April 03, 2026
Arvind