http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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.