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Friday, March 30, 2012

It was on 22.9.2005, the appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to respondent Anand Kumar Singh and others vide order dated 2.8.2008.


                                                                REPORTABLE




                 IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO.  2160   of 2011

                (Arising out of SLP(Crl.) No. 2768 of 2010)




Shiv Shankar Singh                                                       ...Appellant


                                        Versus




State of Bihar & Anr.                                                    ...Respondents

                           




                                 J U D G M E N T




Dr. B.S. Chauhan, J.




1.       This appeal has been preferred against the judgment and order


dated   6.5.2009   passed   by   the   High   Court   of   Judicature   at   Patna   in


Criminal  Miscellaneous  No.  36335  of  2008,  by   which  the  cognizance


taken   by   the   Magistrate   vide   order   dated   2.8.2008   against   the


respondent   no.2   under   Section   395   of   the   Indian   Penal   Code,   1860


(hereinafter called `IPC') has been quashed.


2.       Facts and circumstances giving rise to this case are that:


A.       A     dacoity   was   committed   in   the   house   of   present   appellant


Shivshankar   Singh   and   his   brother   Kameshwar   Singh   on   6.12.2004


wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits


and   lots   of   valuable   properties   were   looted.     The   police   reached   the


place   of   occurrence   at   about   3.00   AM   i.e.   about   2   hours   after   the


occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the


appellant naming Ramakant Singh and Anand Kumar Singh alongwith


15 other persons under Sections 396/398 IPC.


B.        However,   Kameshwar   Singh,   the   real   brother   of   the   appellant


and father of Gopal Singh, the deceased, approached the court by filing


a case under Section 156 (3) of the Code of Criminal Procedure, 1973,


(hereinafter   called   `Cr.P.C.').   Appropriate   orders   were   passed   therein


and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004


in   respect   of   the   same   incident   with   the   allegations   that   the   present


appellant,   Bhola   Singh,   son   of   the   second   complainant   and   Shankar


Thakur, the maternal  uncle of Bhola Singh had killed Gopal Singh as


the accused wanted to grab the immovable property.


C.        Investigation in pursuance of both the reports ensued. When the


investigation in pursuance of both the FIRs was pending, the appellant


filed Protest Petition on 4.4.2005, but did not pursue the matter further.


The court did  not pass any order on the said petition.  After completing


investigation   in   the   Report   dated   6.12.2004,   the   police   filed   Final


Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case


was totally false and Gopal Singh had been killed for property disputes.




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D.       After   investigating   the   other   FIR   filed   by   Kameshwar   Singh,


father   of   the   deceased,   charge-sheet   was   filed   under   Sections   302,


302/34, 506 IPC etc. on 29.8.2005 against the appellant,   Bhola Singh,


son of complainant and others.  The matter stood concluded after trial in


favour of the accused persons therein.


E.       It was on 22.9.2005, the appellant filed a second Protest Petition


in   respect   of   the   Final   Report   dated   9.4.2005.     After   considering   the


same  and examining a very large number of witnesses, the Magistrate


took   cognizance   and   issued   summons   to   respondent   Anand   Kumar


Singh and others vide order dated 2.8.2008.


F.       Being   aggrieved,   the   respondent   Anand   Kumar   Singh   filed


Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated


2.8.2008 which has been allowed by the High Court on the ground that


second Protest Petition was not maintainable and the appellant ought to


have pursued the first Protest Petition dated 4.4.2005.


         Hence, this appeal.


3.       Shri   Gaurav   Agrawal,   learned   counsel   appearing   for   the


appellant has submitted that the High Court failed to appreciate that the


so-called first Protest Petition having been filed prior to filing the Final


Report   was   not   maintainable   and   just   has   to   be   ignored.   The   learned


Magistrate   rightly   did   not   proceed   on   the   basis   of   the   said   Protest





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Petition   and   it   remained   merely   a   document   in   the   file.     The   second


petition was the only Protest Petition which could be entertained as it


had been filed subsequent  to filing the Final Report.   The High Court


further   committed   an   error   observing   that   the   Magistrate's   order   of


summoning  the respondent No.1 was vague and it was not clear as in


which Protest Petition the order had been passed. More so, the facts of


the case in  Joy Krishna Chakraborty & Ors. v. The State & Anr.,


1980 Crl. L.J. 482,  decided by the Division Bench of the Calcutta High


Court and solely relied by the High Court were distinguishable as in the


said   case   the   first   Protest   Petition     had   been   entertained   by   the


Magistrate   and   an   order   had   been   passed.   Protest   Petition   is   to   be


treated   as   a   complaint   and   the   law   does   not   prohibit   filing   and


entertaining   of   second   complaint   even   on   the   same   facts   in   certain


circumstances.   Thus, the judgment and order impugned is liable to be


set aside.


4.       On   the   contrary,   Shri   Awanish   Sinha   and   Shri   Gopal   Singh,


learned counsel appearing for the respondents have vehemently opposed


the   appeal     contending   that   the   second   petition   was   not   maintainable


and the appellant ought to have pursued the first Protest Petition. The


High   Court   has   rightly   observed   that   the   order   of   the   Magistrate


summoning   the   respondent   No.1   and   others   was   totally   vague.   Even


otherwise, as the appellant himself had faced the criminal trial in respect




                                                                                   4


of   the   same   incident,   he   cannot   be   held   to   be   a   competent/eligible


person to file  the Protest  Petition.   He had purposely lodged the false


FIR promptly after committing the offence himself. Therefore, the facts


of the case do not warrant any interference by this court and the appeal


is liable to be dismissed.


5.        We have considered the rival submissions made by the learned


counsel for the parties and perused the record.


6.        We do not find any force in the submission made on behalf of


the   respondents   that   as   in   respect   of   same   incident   i.e.   dacoity   and


murder of Gopal Singh, the appellant himself alongwith others is facing


criminal   trial,   proceedings   cannot   be   initiated   against   the   respondent


No.1   at   his   behest   as   registration   of   two   FIRs   in   respect   of   the   same


incident is not permissible in law, for the simple reason that law does


not prohibit registration and investigation of two FIRs in respect of the


same incident in case the versions are different.   The test of sameness


has to be applied otherwise there would not be cross cases and counter


cases. Thus, filing another FIR in respect of the same incident having a


different version of events is permissible.   (Vide:  Ram Lal Narang v.


State (Delhi Admn.), AIR 1979 SC 1791;   Sudhir & Ors., v. State of


M.P., AIR 2001 SC 826; T.T. Antony v. State of Kerala & Ors., AIR


2001 SC 2637;  Upkar Singh v. Ved Prakash & Ors.,   AIR 2004 SC


4320;  and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).




                                                                                        5


7.       Undoubtedly, the High Court has placed a very heavy reliance


on   the   judgment   of   the   Calcutta   High   Court   in    Joy   Krishna


Chakraborty   &   Ors.   (supra),   wherein   the   Protest   Petition   dated


19.3.1976   was   entertained   by   the   Magistrate   issuing   direction   to   the


Officer-in-Charge of the Khanakul Police Station under Section 156(3)


Cr.P.C.   to   make   the   investigation   and   submit   the   report   to   the   court


concerned     by   10.4.1976.   The     Officer-in-Charge     of   the   said   police


station   did   not   carry   out   any   investigation   on   the   ground   that   the


incident   had   occurred   outside   the   territorial   jurisdiction   of   the   said


police   station.     The   second   Protest   Petition   filed   by   the   same


complainant on 23.3.1976 was entertained by the learned Magistrate.  In


fact, it was in this factual backdrop that the Calcutta High Court held


that the matter could have been proceeded with on the basis of the first


Protest   Petition   itself   by   the   Magistrate   and   second   Protest   Petition


could not have been entertained.


8.       The   facts   of   the   present   case   are   completely   distinguishable.


Therefore, the ratio of the said judgment has no application in the facts


of this case.


9.       In  Bhagwant Singh  v. Commissioner of Police & Anr., AIR


1985   SC   1285,   this   Court   dealt   with   an   issue   elaborately   entertaining


the writ petition and accepting the submission in regard to acceptance of





                                                                                   6


the   Final   Report   to   the   extent   that   if   no   case   was   made   out   by   the


Magistrate, it would be violative of principles of natural justice of the


complainant and therefore before the  Magistrate drops the proceedings


the   informant   is   required   to   be   given   hearing     as   the   informant   must


know what is the result of the investigation initiated on the basis of first


FIR.  He is the person interested in the result of the investigation. Thus,


in case the Magistrate takes a view that there is no sufficient ground for


proceeding   further   and   drops   the     proceedings,   the   informant   would


certainly be prejudiced and therefore, he has a right to be heard.


10.    In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432,


this   Court   held   that   the   second   complaint   lies   if   there   are   some   new


facts or even on the previous facts if the special case is  made out.


          Similarly,   in  Pramatha   Nath   Talukdar   v.   Saroj   Ranjan


Sarkar, AIR 1962 SC 876, this Court has held as under:


          "An   order   of   dismissal   under   Section   203   of   the

          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





                                                                                           7


         should   be   given   another   opportunity   to   have   his

         complaint enquired into."




11.             After   considering   the   aforesaid   judgment   along   with   various


other judgments  of this Court,   in   Mahesh  Chand  v. B.  Janardhan


Reddy & Anr., AIR 2003 SC 702,  this Court held as under:



         "..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   CrPC

         may take cognizance of an offence and issue process if

         there is sufficient ground for proceeding...."



In  Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar


view has been re-iterated by this Court.


12.         In Jatinder Singh & Ors. v. Ranjit Kaur, AIR 2001 SC 784,


this Court held that dismissal of a complaint on the ground of default


was no bar for a fresh Complaint being filed on the same facts.


                             Similarly in   Ranvir Singh v. State of Haryana,  (2009) 9


SCC 642, this Court examined the issue in the backdrop of facts that the


complaint   had   been   dismissed   for   the   failure   of   the   complainant   to


put in the process fees for effecting service and held that in such a fact-


situation second complaint was maintainable.    


13.      Thus,   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





                                                                                    8


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.


14.       The Protest  Petition can always be treated  as a  complaint  and


proceeded  with in terms of Chapter XV of Cr.P.C. Therefore, in case


there   is   no   bar   to   entertain   a   second   complaint   on   the   same   facts,   in


exceptional circumstances, the second Protest Petition can also similarly


be   entertained   only   under   exceptional   circumstances.   In   case   the   first


Protest   Petition   has   been   filed   without   furnishing   the   full


facts/particulars   necessary   to   decide   the   case,   and   prior   to   its


entertainment   by  the  court,  a  fresh  Protest  Petition is filed  giving  full


details, we fail to understand as to why it should not be maintainable.


15.       The   instant   case   is   required   to   be   decided   in   the   light   of   the


aforesaid settled legal propositions.


          Order   dated   2.8.2008   passed   by   the   Magistrate   concerned   is


based on the depositions made by the appellant-Shivshankar Singh,  and


a very large number of witnesses, namely, Sonu Kumar Singh, Suman


Devi,   Nirmala   Devi,   Ganesh   Kumar,   Udai   Kumar   Ravi,   Ram   Achal




                                                                                        9


Singh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr.


Narendra Kumar. More so, the  record of the Sessions Trial No. 866 of


2005,   wherein   the   appellant   himself   has   been   put   to   trial   was   also


summoned   and   examined   by   the   learned   Magistrate.   Thus,   the


Magistrate further took note of the fact that for the same incident, trial


was   pending  in   another   court.    After  appreciating   the  evidence   of  the


complainant   and   other   witnesses   deposed   in   the   enquiry,   the   learned


Magistrate passed the following order :


          "On   the   basis   of   aforesaid   discussion,   I   find   that

          there   are   materials   available   on   the   record   to

          proceed   against   the   accused   person.   A   prima-facie

          case   under   Section   395   IPC   has   been   made   out

          against   all   the   accused   person   of   this   case.   O/c   is

          directed   to  issue   summons  on   filing   of  the   requisite.

          Put   up   the   record   on   13.8.2008   for   filing   of   the

          requisites."  


16.       The High Court without taking note of the aforesaid  evidence


set   side   the   order   of   the   Magistrate   on   a   technical   ground   that   the


second   Protest   Petition   was   not   maintainable   without   considering   the


fact that the first Protest Petition having been filed prior to filing of the


Final Report was not competent.  More so, the High Court without any


justification made the following remarks:


          "The Court can only record that the learned Judicial

          Magistrate   has   not   conducted   himself   in   a   fair

          manner

          because he has intentionally left the impugned order

          vague   as   to   which   protest   petition   he   was   acting





                                                                                     1


          upon,   so   that   advantage   may   accrue   to   Opposite

          Party No.2."


17.       In   our   opinion,   there   was   no   occasion   for   the   High   Court   to


make   such   sweeping   remarks   against   the   Magistrate   and   the   same


remain   unjustified   and   unwarranted   in   the   facts   and   circumstances   of


the case.


18.           In view of the above, the appeal succeeds and is allowed. The


order   impugned   of   the   High   Court   is   set   aside   and   the   order   of   the


Magistrate is restored. Respondent No.1 is directed to appear before the


Magistrate   on   1.12.2011   and   the   learned   Magistrate   is   requested   to


proceed   in   accordance   with   law.     However,   we   clarify   that   any


observation   made   in   this   judgment   shall   not   adversely   prejudice   the


cause of the respondent  to seek any further relief  permissible in law as


the   said   observations   have   been   made   only   to   decide   the   controversy


involved herein.





                                                   ............................J.

                                                   (Dr. B.S. CHAUHAN)




                                                                   

                                                   .............................J.

                                                   (T.S. THAKUR)




  New Delhi,

  November 22, 2011





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