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
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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).
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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
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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
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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
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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
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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
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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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