K.S. Mudagal, J.

1. Heard both side.

2. "Whether the proceedings in C.C. No. 122/2017 on the file of the Additional Senior Civil Judge and A.C.J.M., Udupi amount to abuse of the process of the Court" is the question involved in this case.

3. On 14.06.2015 Respondent No. 2 filed complaint as per Annexure-D alleging that due to some previous ill-will, the petitioner, accused Nos. 2 to 4 and 15 others, forming themselves into an unlawful assembly armed with deadly weapons at about 7:30 p.m. on that day, near Kodange of Herga village assaulted him and his elder brother Antony and caused them grievous injuries.

4. On the basis of such complaint, respondent No. 1 registered FIR as per Annexure-F in Crime No. 113/2015 against the petitioner and others for the offences punishable under Sections 143, 147, 148, 341, 324, 326, 506 read with Section 149 of IPC.

5. On investigation, respondent No. 1 - police filed charge sheet dated 30.01.2016 as per Annexure-J against 13 accused for the offences punishable under Sections 143, 147, 148, 326, 504, 307 read with Section 149 of IPC. The Investigating Officer dropped the petitioner from the charge sheet on the ground that respondent No. 2 gave a further statement to the effect that the petitioner had gone to the scene of offence to pacify the quarrel and under mistaken notion he included the petitioner also as an accused.

6. It is submitted that thereafter the matter is committed to the Sessions Court and pending for trial. Thereafter, respondent No. 2 filed PCR No. 8/2017 against the petitioner before the Principal Senior Civil Judge and C.J.M., Udupi to prosecute the petitioner on the same set of facts. In that complaint, he alleged that respondent No. 1 - police in collusion with the petitioner have dropped him from the case and he had not given any further statement as alleged in the charge sheet.

7. The learned Magistrate on the basis of such complaint, recorded the sworn statement of respondent No. 2 and by the impugned order dated 17.06.2017, took cognizance of the offences. By virtue of the said order, the case is now registered in C.C. No. 122/2017 and the petitioner is summoned to face the Trial.

8. The petitioner seeks quashing of the said proceedings on the ground that once an accused is dropped from the case while filing the charge sheet, the remedy of the complainant is only either to file protest petition or to summon him under Section 319 of Cr.P.C. at the inquiry or trial. He claims on the same cause of action, the second complaint was not maintainable.

9. Sri. Shashikiran Shetty, learned Senior Counsel appearing for Smt. Latha S. Shetty advocate on record for the petitioner reiterating the grounds urged submitted that when the learned Magistrate was aware of the earlier proceedings, he was not justified in taking cognizance. He further submits that the observation of the learned Magistrate that further statement of the complainant did not bear his signature is contrary to Section 161 of Cr.P.C.

10. So far as the maintainability of the writ petition he submits that the petition is under Section 482 of Cr.P.C., invoking the inherent power of the Court, since the abuse of the Court is apparent. He submits that there is no merit in the contention that the revision lies.

11. In support of his contentions, he relies upon the following judgments:

i) Dharm Pal and others vs. State of Haryana and another (2014) 2 SCC (CRI) 159 [LQ/SC/2013/781]

ii) Smt. Vinod Gupta vs. Haryana State Pollution Control Board through its Regional Officer, Faridabad Region, Faridabad Region, Panchkula 2015 SCC ONLINE P & H 13635

12. Per contra, Sri. M.G. Kumar, learned counsel for respondent No. 2 submits that there is no complete bar for filing a second complaint on same set of facts. He further submits that respondent No. 1 - police under the influence of the petitioner dropped him from the case though there was material to proceed against him. He further submits that respondent No. 2 had not given any further statement before the Investigating Officer as alleged.

13. In support of his contentions, he relies upon the judgment of the Hon'ble Supreme Court in Mahesh Chand vs. B. Janardhan Reddy and another AIR 2003 SC 702 [LQ/SC/2002/1284] .

14. Having regard to the rival contentions, the only point that arises for consideration is whether there is statutory bar in filing a second complaint on the same set of facts, if not under what circumstances the second complaint can be filed.

15. It is no doubt true in the judgment in Mahesh Chand's case relied upon by respondent No. 2 it was held that there is no statutory bar for filing of the second complaint on the same set of facts. But at the same time it was held that the second complaint could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust, where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.

16. The reading of the said judgment shows that on police filing 'B' report in the said case, a protest petition was filed and rejecting the protest petition, the case against the accused was closed. Thereafter, a private complaint was filed. The order taking cognizance on the private complaint was challenged before the High Court under 482 of Cr.P.C., that was allowed on the ground that the dispute was civil in nature and the second complaint was barred. Even to apply the said judgment, now the Court has to see whether there are any exceptional circumstances to permit the filing of the second complaint on the same set of facts.

17. Admittedly, the learned Magistrate accepted the final report of respondent No. 1 - police dropping the petitioner. That order has attained finality. The ground for dropping the petitioner was that respondent No. 2 has given a further statement to the effect that petitioner had gone to the scene of the offence only to pacify the quarrel and under mistaken impression, respondent No. 2 made allegations against him also. Respondent No. 2 claimed that he had not given any such further statement.

18. The learned Magistrate while taking cognizance under the impugned order states that the said statement did not bear the signature of respondent No. 2, therefore, his contention that he had not given such statement has to be accepted. But while observing so, the learned Magistrate overlooked the provisions of Sections 161 and 162 of Cr.P.C., which say that no statement made by any person before the police officer during the course of investigation shall be signed by the person making such statement.

19. If according to respondent No. 2, such statement was fabricated by the Investigating Officer his remedy was to file protest petition before the Magistrate and if such protest petition was not accepted to question that order in accordance with law. The larger Bench of the Hon'ble Supreme Court in Dharm Pal's case referred to Supra held that the cognizance of offence can be taken only once. There is no question of taking part of cognizance by the learned Magistrate and Sessions Court.

20. If the learned Magistrate once takes cognizance on filing the charge sheet and commits the case to the Sessions Court, he becomes functus officio. Then Magistrate cannot for the second time by way of private complaint take cognizance in the same case in respect of the same incident. If at all during the course of the trial any material is brought on record, it is open to the prosecution to summon the additional accused invoking Section 319 of Cr.P.C.

21. In light of the above observations and the judgment of the Hon'ble Supreme Court, this Court does not find that there was any exceptional condition to file a second complaint. Under the circumstances, the judgment of the Hon'ble Supreme Court in Mahesh Chand's case relied upon by respondent No. 2 in no way advances his case. The order taking cognizance and the impugned proceedings amount to abuse of the process of the Court.

22. Therefore, the petition is allowed. The order taking cognizance of the offence against the petitioner and consequent proceedings in C.C. No. 122/2017 on the file of the Additional Senior Civil Judge and A.C.J.M., Udupi are hereby quashed.

In view of the disposal of the petition, pending I.As stood disposed of.