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2011 DIGILAW 1663 (RAJ)

Raj Kumar v. State of Rajasthan

2011-08-09

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 8.9.2008 passed by the Additional Sessions Judge No. 2, Alwar in Criminal Revision No. 86/2008 by which the learned revisional court by dismissing the revision petition filed by the petitioners has upheld the order dated 25.8.2006 passed by Judicial Magistrate No. 4, Alwar in Criminal Case No. 19/2004 whereby the learned trial Court took cognizance for offences under Sections 498-A and 406 IPC against the petitioners on the basis of a complaint filed by the non-petitioner No. 2 complainant. 2. The brief relevant facts for the disposal of this petition are that the complainant-Ashok Kumar filed a complaint for offences under Sections 498-A, 406 read with Sec. 120-B IPC against the present petitioners and some other persons on 20.9.2003 before the trial Court and that complaint was sent for investigation under Sec. 156(3) Cr.P.C. to the concerned police station where FIR No. 73/2003 was registered and after usual investigation the police filed charge sheet against five persons only for offences under Sec. 498-A and 406 in the court on 20.12.2003 and on the same day cognizance was taken by the court. It is stated that in that case charges have already been framed against the persons against charge sheet was filed and the matter is pending for trial. Thereafter, the complainant on the same set of facts filed another complaint on 3.2.2004 against the five left out persons including the present petitioners for offences under Section 498-A, 114 and 116 IPC stating therein that the police did not file charge sheet against the persons named in the second complaint and it was prayed that cognizance may be taken against these persons also. In support of the complaint statements under Sections 200 and 202 Cr.P.C. were recorded. The learned trial Court on the basis of complaint and the evidence produced in support of that, took cognizance against the petitioners for the offences under Section 498-A and 406 IPC vide order dated 25.8.2006 and ordered that they may be summoned through bailable warrant. Feeling aggrieved by the order dated 25.8.2006 the petitioners filed a revision petition before the revisional court and the learned revisional court after hearing both the parties by passing the impugned order dismissed the revision petition. Feeling aggrieved by the order dated 25.8.2006 the petitioners filed a revision petition before the revisional court and the learned revisional court after hearing both the parties by passing the impugned order dismissed the revision petition. Aggrieved by both the orders, the petitioners are before this Court by way of this petition. 3. Assailing the orders passed by the courts below the learned counsel for the petitioners has submitted that it is an admitted fact that on the complaint filed by the non-petitioner FIR was registered and after investigation police did not file charge sheet against the petitioners and only against five persons charge sheet was filed whom the police found involved in the incident. It was also submitted that despite the fact that charge sheet was filed in trial Court on 20.12.2003, no prayer was made by the non-petitioner that cognizance may also be taken against the persons left out by the police but the non-petitioner on the same facts filed another complaint on 3.2.2004 and the trial court without jurisdiction took cognizance against the petitioners whereas the settled legal position is that on the same set of facts second or subsequent complaint cannot be filed. In support of his submissions, the learned counsel for the petitioners relied upon Shahjad Ali & Ors. vs. The State of Rajasthan & anr. reported in 2009 WLC (Raj.) 219. 4. On the other hand, learned counsel for the non-petitioner, by supporting the orders passed by the courts below, submitted that infact the complainant did not file second complaint on the same facts, but he filed protest petition in the original case. It was also submitted that during the course of hearing of the protest petition statements under Sections 200 and 202 Cr.P.C. were recorded by the Court and cognizance was taken against the petitioners. It was further submitted that the court is competent to take cognizance upon a protest petition against such persons against whom police has not filed charge sheet. It was also contended by the learned counsel for the non-petitioner that second or subsequent complaint is not always barred and in a suitable case cognizance may be taken even on such complaint. 5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 6. 5. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 6. The Hon'ble Supreme Court in the case of Mahesh Chand vs. B. Janardhan and another reported in 2003 Crl. L.J. 866 has held that: "The second complaint would not be completely barred. There is no statutory bar in filing a second complaint on the same facts. In a case where previous complaint is dismissed without assigning any reason, the Magistrate under S. 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient grounds for proceeding. 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 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 case of Bindeshwari Prasad Singh vs. Kali Singh reported in 1978 Crl. L.J. 187 the Hon'ble Supreme Court has held that: "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." 7. Thus, it is clear that second or subsequent complaint on the basis of same facts is not totally barred and if a special case is made out even second complaint can be entertained. Therefore, no fault can be found in the order of cognizance only by the reason that after filing of charge sheet the non-petitioner filed a second complaint on the same set of facts. Now, it is to be seen whether a special case can be said to be made out so as to allow the non-petitioner to file a second complaint. It is also to be seen whether the court was competent to take cognizance against the petitioners on the same set of facts. As already been said in the first complaint the present petitioners were also named as accused but after investigation charge sheet was not filed against them. It is also to be seen whether the court was competent to take cognizance against the petitioners on the same set of facts. As already been said in the first complaint the present petitioners were also named as accused but after investigation charge sheet was not filed against them. In my view in this fact situation a "special case" was made out and the non-petitioner was competent to file second complaint praying therein that cognizance may be taken against the present petitioners. The case in hand is not such a case in which upon a previous complaint of the non-petitioner, the court after full consideration has given a decision against the non-petitioner. Only by the reason that the police after investigation did not file charge sheet against the petitioners, it cannot be said that final decision was given by the Court against the non-petitioner. 8. So far as the case of Shahjad Ali & Ors. vs. State of Rajasthan & Anr. (supra) is concerned, I am of the considered view that it being decided on a different set of facts, is of no help to the petitioners. It appears from the facts that the complainant of that case filed a complaint on 19.2.1996 in the Court of Judicial Magistrate, Sikar and same was sent for investigation under Section 156(3) Cr.P.C. and FIR No. 289/96 was registered at Police Station Kotwali, Sikar and after investigation charge sheet was filed only against the husband of the complainant. Subsequently, the Public Prosecutor submitted an application before the Court praying therein that cognizance may also be taken against the persons against whom police did not file charge sheet. The application filed by the prosecution was allowed by the trial Court and cognizance was also taken against the left out persons. The persons against whom cognizance was taken by the trial Court assailed that order by filing revision petition before the revisional court and the revisional court allowed the revision petition and quashed and set aside the order of cognizance passed by the trial Court. Subsequently, the complainant again filed new complaint on 25.7.2000 against the same persons and the court recorded statements under Sections 200 and 202 Cr.P.C. The learned Magistrate passed an order of cognizance against those persons against whom police did not file charge sheet. Subsequently, the complainant again filed new complaint on 25.7.2000 against the same persons and the court recorded statements under Sections 200 and 202 Cr.P.C. The learned Magistrate passed an order of cognizance against those persons against whom police did not file charge sheet. That order of cognizance was challenged by way of revision petition but that was dismissed by the revisional court. Both the orders were challenged by way of criminal misc. petition and the Coordinate Bench of this Court in this facts situation quashed and set aside the order of cognizance. The Coordinate Bench of this Court has observed that "when after complete proceedings had been undertaken on the previous complaint and the question of cognizance in respect of petitioners had attained finality when the same was set aside by the learned revisional court by order dated 3.9.98, subsequently, on the same set of facts second complaint cannot be filed and order of cognizance passed on such complaint is liable to be set aside." In the present case the facts are somewhat different. Although, in the present case also police after investigation did not file charge sheet against the petitioners, but the prosecution or complainant did not file any application praying therein that cognizance may also be taken against the left out persons. It is not a case in which an order refusing to take cognizance has attained finality. In the present case, the complainant on the same facts filed a second complaint and the court on the basis of the complaint and statements recorded under Sections 200 and 202 Cr.P.C. ordered to take cognizance against the petitioners also and the order of the trial Court was upheld by the revisional court. Therefore, it cannot be said that the courts below have committed any illegality or irregularity or there is perversity in the orders passed by the courts below. 9. Consequently, the criminal misc. petition filed on behalf of the petitioner being devoid of merit is, hereby, dismissed.