HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on : 18.11.2015
Judgment delivered on : 01.12.2015
Case :- APPLICATION U/S 482 No. - 30994 of 2015
Applicant :- Sabir & 3 Others
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Vinod Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard learned counsel for the applicants and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the order dated 22.9.2015 passed by Addl. District & Sessions Judge, Court No.5, Bijnor in revision no. 153 of 2015 (Sabir & others Vs. Mohd. Irfan and another) as well as order dated 7.4.2014 passed by Additional Chief Judicial Magistrate-I, Bijnor in case no.326 of 2013 ( Mohd. Irfan Vs. Sabir & others). Further prayer has been made to stay the effect and operation of the impugned orders.
Submission of the learned counsel for the applicants is that initially the matter was investigated, in which, police after investigation, submitted the final report. The opposite party no.2 filed the complaint on the basis of same set of evidence on 27.5.2013. Summoning order was passed by the Magistrate concerned against the applicants. The applicants had challenged the summoning order in the criminal revision, which was dismissed on 22.9.2015 on the basis of insufficient ground. It was further submitted that since the final report was submitted, the complaint filed subsequent thereof is barred by law. Complainant had opportunity to file the protest petition in the final report, but the court concerned did not take into account this aspect of the matter and illegally taking cognizance summoned the applicants. Learned counsel for the applicants has also placed reliance on the case law of this Court in support of his contention.
On the other hand, learned A.G.A. argued that only on the basis of submission of the final report after investigation by the police, the complaint filed by the complainant is not barred by the provisions of law. The present complaint cannot be treated as second complaint. Proceedings of the complaint case are not barred and cannot be quashed on the ground taken by the applicants.
I have considered the rival submissions advanced by the learned counsel for the parties and have also considered the law laid down by this Court in the case of Jai Ram Vs. State of U.P., LAW (All) 2013 - 5 -16, as relied upon by the learned counsel for the applicants.
Regarding maintainability of the second complaint, this Court in the case of Jai Ram (supra) has held in paragraphs 8, 9 & 10 as under.
"8. There is no dispute regarding maintainability of second complaint as laid down in various pronouncements. Hon'ble Supreme Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - (AIR 1962 SC 876). has laid down thus:
"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 Section 203 of the Code of Criminal Procedure. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words, there must be good reasons, why the Magistrate thinks that there is "sufficient ground for the 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 question now is, what should be those exceptional circumstances ? In Queen Empress v. Dolagobind Dass (1), Maclean, C. J. said: "I only desire to add that no Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with by a Magistrate of coordinate jurisdiction upon the same evidence only, unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice.".
In the same decision, the Apex Court also has laid down the test to determine the exceptional circumstances which are.--(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".
9. The Hon'ble Apex Court 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 the judgment of Pramatha Nath Talukdar and another (supra) the Hon'ble Apex Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. The 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.
10. In Mahesh Chand vs. B. Janardhan Reddy and another - (2003) 1 SCC 734, the Hon'ble Apex 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 case 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 (supra) the Hon'ble Apex Court relied on the ratio in Pramatha Nath (supra) and held that if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances as has been pointed out in Pramatha Nath (supra).
In Shiv Shankar Singh Vs State of Bihar and another (2012) 1 SCC 130, the Hon'ble Apex Court has held as under:
"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."
In the present matter, as is evident from the record, after initiation of the police investigation, complaint was also filed by the complainant. Perusal of the record also shows that no any complaint was dismissed by the court concerned on merit. The submission raised by the learned counsel for the applicants that it is a second complaint is not acceptable. It is true that the complainant may file the protest petition on the final report and the court dealing with the matter is empowered to treat the protest petition as complaint, but only on this basis the complaint filed by the complainant cannot be treated as second complaint. Learned counsel for the applicants also did not disclose the final result of the final report. From perusal of the revisional court's order dated 22.9.2015 (annexure 6 to the affidavit accompanying the application), it appears that court concerned has consolidated both the matter. No any benefit goes in favour of the the applicants with the law laid down in the above cited Jai Ram (Supra) case, rather it helps to the complainant.
In view of the above, no ground for quashing the proceedings of the aforesaid case as well as the summoning order is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. as the same do not suffer from any illegality or infirmity.
The Application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed.
Dtd./- : 01.12.2015 ss