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2013 DIGILAW 1391 (ALL)

JAI RAM v. STATE OF U. P.

2013-05-10

BHARAT BHUSHAN

body2013
JUDGMENT Hon’ble Bharat Bhushan, J.—By means of present revision, seven revisionists have challenged the impugned summoning order dated 30.11.2002 passed in Case No. 466 of 2002 (Mishri Lal Sachan v. Jai Ram), under Sections 147 and 506 IPC, P.S. Sajeti, District Kanpur Dehat whereby all the revisionists have been summoned by the learned Magistrate to face the trial for the said offences. 2. A lawyer of Kanpur Dehat, Mishri Lal Sachan has initiated criminal proceedings against seven revisionists stating that on 6.6.2001 at about 8 p.m. he was returning from Village Harbaspur with his advocate son Sunil Kumar Sachan. They were intercepted by the applicants near ‘Banyan’ tree at the gun point and were threatened by the applicants with dire consequences. Both the lawyers pleaded for mercy and revisionists let them off. 3. The police allegedly refused to register the F.I.R. On the intervention of the Magistrate, an FIR vide Case Crime No. 144 of 2001, under Section 147,506 was registered against the revisionists. Subsequent to the investigation, the Investigating Officer submitted the final report. Against the final report, protest petition was filed by the complainant which was rejected by the Court below vide order dated 20.11.2001.Thereafter, opposite party/complainant preferred a criminal revision being Revision Petition No. 205 of 2001 before the Sessions Judge, Kanpur Dehat which was ultimately decided by Additional Sessions Judge, Court No. 7, vide judgement and order dated 30.1.2002. 4. It is stated that after a lapse of more than six months another complaint on the same facts was filed on 7.7.2002 against the applicants. Learned Magistrate recorded the statements of the complainant and his witnesses under Section 200/202 Cr.P.C and thereafter summoned the revisionists to face the trial for the offences under Sections 147 and 506 IPC vide order dated 30.11.2002, which is subject-matter of challenge before this Court in the present criminal revision. 5. Heard learned counsel for the revisionists, learned counsel for the informant and learned A.G.A. and have also perused the material on record. 6. It is submitted by learned counsel for the revisionists that once the revisionists have been let off by the Court below up to revisional stage, second complaint for the same facts is not permissible in the eyes of law. 7. It is submitted by the learned counsel for the revisionists that the revisionist Nos. 6. It is submitted by learned counsel for the revisionists that once the revisionists have been let off by the Court below up to revisional stage, second complaint for the same facts is not permissible in the eyes of law. 7. It is submitted by the learned counsel for the revisionists that the revisionist Nos. 1 and 2 are the Government servant and are working as Village Development Officer at Bhitar Gaon Block, revisionist No. 3 is a Sub Inspector posted at Aligarh, revisionist Nos. 4 and 5 are the witnesses in other case filed against the opposite party No. 2, revisionist No. 6 is the village pradhan and respondent No. 7 is the brother of the revisionist No. 6. They have been falsely implicated in a cooked up case due to village enmity and party bandi. It is further contended by learned counsel for the revisionists that the complainant and his son are practising Advocate at kanpur and they have been continuously harassing the revisionists by filing false cases with oblique motives just to create pressure and harass the revisionists. 8. In reply, it is submitted by learned counsel for the complainant that the revisionist have been rightly summoned by the Court below on the basis of the statements of the witnesses recorded under Section 202 Cr.P.C. veracity of which can only be examined during trial. He, however, admitted that the complainant did not challenge the order dated 30.1.2002 passed by the learned Additional Sessions Judge, Court No. 7 dismissing the revision petition filed by the complainant but at the same time he would argue that the complainant also has a remedy to file a complaint. Learned A.G.A. has also supported the order passed by the Court below. 9. The short question involved in the present case is as to whether the second complaint in a criminal case on the same set of facts and allegations is maintainable or not, when the first FIR on same facts was closed on merits up to revisional stage by the Courts below. 10. Learned counsel for the revisionists, very strongly submits that the second complaint filed by the complainant is nothing but verbatim reproduction of the earlier FIR filed by the opposite party No. 2 which is not legally sustainable in the eyes of law. 10. Learned counsel for the revisionists, very strongly submits that the second complaint filed by the complainant is nothing but verbatim reproduction of the earlier FIR filed by the opposite party No. 2 which is not legally sustainable in the eyes of law. Prosecution of the revisionists on the basis of such complaint is liable to be quashed by this Court. 11. 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 v. 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 Section 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.”. 12. 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”. 13. 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. 13. 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. 14. In Mahesh Chand v. 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 cognisance 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). 15. In Shiv Shankar Singh v. 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.” 16. 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.” 16. In the present case, what emerges from the pleading of the petition that earlier criminal case was initiated on the basis of the application 156(3) Cr.P.C. which was investigated by the police and after investigation, the Investigating Officer submitted the final report. Against the final report, protest petition was filed by the complainant which was rejected by the Court below vide order dated 20.11.2001 after perusing the statements of the complainant and his witnesses. Thereafter, the revision petition filed against the said order was also dismissed by the learned Additional Sessions Judge on merits. The order passed by the learned Additional Sessions Judge in revision was not challenged by the complainant before this Court. Thus, the second complaint on similar facts is not maintainable. 17. Perusal of the impugned summoning order further indicates that the learned magistrate has not even considered that he was taking cognizance of the matter on the basis of second complaint on same set of facts. No exceptional circumstances have been mentioned in the impugned order. This Court finds that the facts of both the cases are the same. Nothing new has been disclosed in the second complaint. In such situation no case is made out for summoning the revisionists as the allegations in both the complaints are identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint on same set of facts cannot be entertained. 18. The Hon’ble Apex Court in Chandrapal Singh and others v. Maharaj Singh and another, AIR 1982 SC 1238 , has held that it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by enabling them to invoke the jurisdiction of criminal Courts by cheaply invoking the jurisdiction of the criminal Court. In such a fact-situation, the Court must not hesitate to quash criminal proceedings. 19. In Criminal Appeal No. 67 of 2013 (Ravinder Singh v. Sukhbir Singh and others) decided on 11.1.2013, the Hon’ble Apex Court has held as under : “It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. In such a fact-situation, the Court must not hesitate to quash criminal proceedings. 19. In Criminal Appeal No. 67 of 2013 (Ravinder Singh v. Sukhbir Singh and others) decided on 11.1.2013, the Hon’ble Apex Court has held as under : “It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the Court and the whole idea is to do real, complete and substantial justice for which the Courts exist. Thus, it becomes the paramount duty of the Court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint.” 20. In view of above, the revision petition is allowed. The impugned summoning order dated 30.11.2002 passed in Case No. 446 of 2002 (Mishri Lal v. Jai Ram) under Section 147/50 IPC, P.S. Sajeti, District Kanpur Dehat, pending in the Court of Additional Civil Judge (JD) Court No. 1/Judicial Magistrate, Kanpur Dehat is hereby quashed. —————