CASE NO.:
Appeal (crl.) 1276 of 2002
PETITIONER:
Mahesh Chand
RESPONDENT:
B. Janardhan Reddy & Anr.
DATE OF JUDGMENT: 04/12/2002
BENCH:
M.B. Shah , D.M. Dharmadhikari & S.B. Sinha.
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.13 of 2002)
S.B. SINHA, J :
Leave granted.
The complainant is the appellant herein. He lodged a First Information
Report against the respondent on 19th July, 1997, alleging, inter alia, therein that a
sale-deed and acknowledgment purported to have been executed by him were
forged and fabricated documents and the respondent wrongfully trespassed into the
lands bearing Survey Nos.100/1 and 101/1 situate at Serlingampaly in the District of
Ranga Reddy, Andhra Pradesh. The Forensic Science Laboratory to whom the said
sale-deed and acknowledgment were sent for a scientific opinion allegedly in its
opinion dated 31st October, 1997 stated that the said sale-deed and acknowledgement
were forged documents.
However, in the meanwhile being not satisfied with the investigation carried
out by the police authorities, he filed a criminal complaint in the Court of the
Additional Judicial First Class Magistrate, (West and South), Saroornagar in the
District of Ranga Reddy against the respondent herein, alleging commission of
offences under Sections 420, 426, 447 and 448 of the Indian Penal Code. It is
admitted that two civil suits are also pending between the parties. The Investigating
Officer, however, upon investigation of the matter came to the conclusion that the
dispute between the parties was a civil dispute. He also arrived at a conclusion that
the appellant herein had executed the acknowledgment. A case disposal report on the
said basis was filed before the learned Magistrate.
The appellant herein on or about 2nd September, 1998 filed a protest petition.
The case disposal report filed by the police was accepted by the learned
Magistrate. The complaint case filed by the appellant was also closed. The said
order has not been questioned by the him.
On or about 8th November, 2002, a third complaint was filed by the appellant
herein purported to be under Section 200 of the Code of Criminal Procedure
whereupon summons were issued upon the respondent.
Questioning the said order, the respondent filed an application under Section
482 of the Code of Criminal Procedure before the High Court of Judicature at
Andhra Pradesh which was marked as Criminal Petition No.591 of 1999. By reason
of the impugned judgment dated 31st August, 2001, a learned Single Judge of the
High Court held that having regard to the police report in Cr. No.206 of 1997 dated
29th July, 1997 that the dispute between the parties was of civil in nature and further
having regard to the dismissal of the protest petition filed by the appellant herein on
2nd September,1998, a fresh complaint on the self same allegations, was barred.
Mr. P.S. Narasimha, the learned counsel appearing on behalf of the appellant
in support of the appeal , would, inter alia, submit that the High Court committed a
manifest error in arriving at the said conclusion as there does not exist any legal bar
in filing a second complaint. Strong reliance, in this connection, has been placed on
a judgment of the Patna High Court in Munilal Thakur & Ors. etc. v. Nawal Kishore
Thakur & Anr. [1985 Crl.L.J.437] and a decision of a learned Single Judge of the
Orissa High Court in The District Manager, Food Corporation of India, Titilagarh v.
Jayashankar Mund & Anr. [1989 Crl.L.J.1578].
Mr. Ramakrishna Reddy, learned Senior Counsel appearing on behalf of the
respondent, on the other hand, would submit that the criminal complaint filed by the
appellant herein was a verbatim reproduction of his earlier complaint petition and in
that view of the matter unless a special case was made out, the learned Magistrate
could not have entertained the said criminal contempt nor could issue processes upon
the respondent relying on the basis thereof.
Strong reliance, in this connection, has been placed on Pramatha Nath
Taluqdar v. Saroj Ranjan Sarkar [(1962) Supp.2 SC R 297] and Bindeshwari Prasad
Singh v. Kali Singh [(1977) 1 SCR 125].
The learned counsel sought to place before us an authenticated copy the said
complaint petition with a view to show that the same was almost a verbatim
reproduction of the earlier complaint petition.
There cannot be any doubt or dispute that only because the Magistrate has
accepted a final report, the same by itself would not stand in his way to take
cognizance of the offence on a protest/complaint petition; but the question which is
required to be posed and answered would be as to under what circumstances the said
power can be exercised.
The law in this behalf is no longer res integra.
In Pramatha Nath Taluqdar's case (supra), Kapur, J, speaking for himself and
Hidayatullah, J, as he then was, observed :
"Therefore if he has not misdirected himself as to
the scope of the enquiry made under s.202, Criminal
Procedure Code, and has judicially applied his mind
to the material before him and then proceeds to
make his order it cannot be said that he has acted
erroneously. An order of dismissal under s.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 interests 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 enquired into Allah Ditta v. Karam
Baksh, Ram Narain Chaubey v. Panachand Jain,
Hansabai v. Ananda, Doraisami v. Subramania. In
regard to the adducing of new facts for the bringing
of a fesh complaint the Special Bench in the
judgment under appeal did not accept the view of
the Bombay High Court or the Patna High Court in
cases above quoted an adopted the opinion of
Macleam, C.J. in Queen Empress v. Dolegobinda
Das affirmed by a full Bench in Dwarka Nath
Mandal v. Benimadhab Banerji. It held therefore
that a fresh complaint can be entertained where
there is manifest error, or manifest miscarriage of
justice in the previous order or when fresh evidence
is forthcoming."
S.K. Das, J delivering the minority judgment also observed :
"The question was then considered by a Full Bench
of the Calcutta High Court in Dwarka Nath Mondul
v. Beni Madhab Banerjee and it was held by the
Full Bench (Ghose, J. dissenting) that a Presidency
Magistrate was competent to rehear a warrant case
triable under Ch. XXI of the Code of Criminal
Procedure in which he had earlier discharged the
accused person. Nilratan Sen's case and Kamal
Chandra Pal's case 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 In re. Koyassan Kutty and it was
observed that there was nothing in law against the
entertainment of a second complaint on the same
facts on which a person had already been
discharged, inasmuch as a discharge was not
equivalent to an acquittal. This view was reiterated
in Kumariah v. Chinna Naicker, where it was held
that the fact that a previous complaint had been
dismissed under s. 203 of the Code of Criminal
Procedure was no bar to the entertainment of a
second complaint. In Hansabai Sayaji v. Ananda
Ganuji the question was examined with reference to
a large number of earlier decisions of several High
Courts on the subject and it was held that there was
nothing in law against the entertainment of a second
complaint on the same facts. The same view was
also expressed in Ram Narain v. Panachand Jain,
Ramanand v. Sheri and Allah Ditta v. Karam Baksh.
In all these decisions it was recognized further that
though there was nothing in law to bar the
entertainment of a second complaint on the same
facts, exceptional circumstances must exist for
entertainment of a second complaint when on the
same allegations a previous complaint had been
dismissedI accept the
view expressed by the High Courts that there is
nothing in law which prohibits the entertainment of
a second complaint on the same allegations when a
previous complaint had been dismissed under s.203
of the Code of Criminal Procedure. I also accept
the view that as a rule of necessary caution and of
proper exercise of the discretion given to a
Magistrate under s.204(1) of the Code of Criminal
Procedure, exceptional circumstances must exist for
the entertainment of a second complaint on the
same allegations; in other words, there must be
good reasons why the Magistrate thinks that there is
"sufficient ground for proceeding" with the second
complaint, when a previous complaint on the same
allegations was dismissed under s.203 of the Code
of Criminal Procedure."
The learned Judge posed the question as to what would be those exceptional
circumstances. Noticing the decisions in Queen Empress v. Dolegobinda Dass
[(1900) ILR 28 Cal.211], In re. Koyassan Kutty [AIR 1918, Mad. 494], Kumariah v.
Chinna Naicker [AIR 1946, Mad. 167] and several other decisions, the learned Judge
came to the conclusion :
"It will be noticed that in the test thus laid
down the exceptional circumstances are brought
under three 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 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 with 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. Dolegobind 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 even though an earlier compliant
was dismissed under s.203 of the Code of Criminal
Prcoedure"
Yet again in Bindeshwari Prasad's case (supra), this Court followed Pramatha Nath
Taluqdar's case (supra) holding :-
"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"
In Munilal Thakur's case (supra), the Division Bench of the Patna High Court
was concerned with the question as to whether a Magistrate even after accepting
final report filed by the police, can take cognizance of offence upon a complaint or
the protest petition on same or similar allegations of fact; to which the answer was
rendered in the affirmative.
The question which has arisen for consideration herein neither arose therein
nor was canvassed.
In Jayashankar Mund's case, the Orissa High Court again did not have any
occasion to consider the question raised herein. The Court held :
"..Even though a protest petition is in the nature
of a complaint, it is referable to the investigation
already held by the vigilance police culminating in
the final report and because the informant was not
examined on solemn affirmation under S.202 of the
Code, thereby no illegality or prejudice was caused
to the accused. If such a view is accepted and there
is no reason why such a view should not be
accepted, the necessary, consequence in this
particular case shall be that the protest petition
which is of the nature of a complaint petition filed
by the petitioner shall be in continuation and in
respect of the case instituted and investigated by the
vigilance police"
Keeping in view the settled legal principles, we are of the opinion that the
High Court was not correct in holding that the second complaint was completely
barred. 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 Sec. 204 Cr.P.C. may take cognizance of an
offence and issue process if there is sufficient ground for proceeding. As held in
Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a
decision has been given against the complainant in previous matter upon a full
consideration of his case. Further, second complaint on the same facts could be
entertained only in exceptional circumstances, namely, where the previous order was
passed on an incomplete record or on a misunderstanding of the nature of complaint
or it was manifestly absurd, unjust or where new facts which could not, with
reasonable diligence, have been brought on record in the previous proceedings, have
been adduced. In the facts and circumstances of this case, the matter, therefore,
should have been remitted back to the learned Magistrate for the purpose of arriving
at a finding as to whether any case for cognizance of the alleged offence had been
made out or not.
For the reasons aforementioned, the impugned order of the High Court is set
aside. The matter shall now go back to the learned Magistrate who shall consider the
matter afresh in the light of the observations made hereinbefore.
This appeal thus stand disposed of. In the facts and circumstances of the
case, there shall be no order as to costs.
