http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 46

PETITIONER:

PRAMATHA NATH TALUQDAR

Vs.

RESPONDENT:

SAROJ RANJAN SARKAR

DATE OF JUDGMENT:

21/12/1961

BENCH:

DAS, S.K.

BENCH:

DAS, S.K.

KAPUR, J.L.

HIDAYATULLAH, M.

CITATION:

1962 AIR 876 1962 SCR Supl. (2) 297

CITATOR INFO :

RF 1971 SC2372 (11)

F 1977 SC2432 (4)

RF 1983 SC 595 (10)

R 1986 SC1440 (9,11)

R 1988 SC1883 (257)

F 1992 SC1894 (11)

ACT:

Criminal Complaint-Scope of enquiry-Second

complaint on same facts but fresh evidence-When

can be entertained-Exceptional circumstances-

Manifest error-Code of Criminal Procedure, 1898

(Act 5 of 1898) ss. 200, 202, 203, 204-Criminal

Matter-Special Bench-Validity of Constitution-

Calcutta High Court (Appellate) Rules-Sanction-

Abetment by conspiracy-Code of Criminal Procedure

1891 (Act 5 of 1898), s. 196A-Indian Penal Code,

1860 (XLV of 1860), ss. 107, 109, 120A, 120B.

HEADNOTE:

On March 17, 1954, Promode Ranjan a brother

of N. R. Sarkar filed a complaint under s. 200

Code of Criminal Procedure against Pramathanath

and S. M. Basu alleging offences punishable under

ss. 467, 471 and 109 of the Indian Penal Code,

before the Chief Presidency Magistrate in respect

of a document appointing Pramathanath as the

Managing Director of N. R. Sarkar & Co. and the

minutes of the Board meeting resolving the same.

It was alleged therein that the signatures of N.

R. Sarkar on those documents were forgeries. After

considering the evidence of the Handwriting Expert

the Magistrate dismissed the complaint. Promode

Ranjan preferred a revision petition to the High

Court. The High Court dismissed the revision

Petition. By an application dated January 6, 1956,

when the revision petition was pending, attention

of the High Court was drawn to the fact that the

minutes dated January 16, 1948, had been typed on

a letter bearing at the top in print "Telephone

City 6091" where as the City Exchange had not come

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 46

into existence till December 1948. The Supreme

Court granted special leave against the dismissal

of the revision petition by the High Court but the

appeal was withdrawn.

On April 3, 1959, Saroj Ranjan, another

brother of N.R. Sarkar, laid a complaint on the

same facts and allegations

298

against the appellants, in addition alleging the

further fact about the City Exchange in support of

the allegation that the minutes were forged

dishonestly and fraudulently and used as genuine.

Neither in this complaint nor before the High

Court had it been stated as to when it came to be

known that on the purported date of the minutes

the City Exchange was not in existence. The

Presidency Magistrate issued process against the

appellants. The appellants went up in revision to

the High Court. The matter was first heard by a

Division Bench and was later referred to a larger

Bench of three Judges which dismissed the revision

petition. In these appeals on special leave it was

contended by the appellants that the second

complaint ought not to have been entertained, that

the constitution of the special Bench was illegal

and that as the complaint alleged criminal

conspiracy sanction under s. 196A of the Code of

Criminal Procedure was required.

^

Held, that the enquiry contemplated by ss.

200 to 204 Code of Criminal Procedure is for the

purpose of enabling the Magistrate to find out if

sufficient grounds exist for issuing process.

Vadilal Panchal v. Daltaraja Dulaji

Chandigaonkar, [1961] 1 S.C.R. 1, Gulab Khan v.

Gulab Mohammad Khan A.I.R. 1927 Lah. 30 and Ram

Gopal Ganpat Ruia v. State of Bombay, (1958)

S.C.R. 688 referred to.

Per S. K. Das, J.-The law does not prohibit

altogether the entertainment of a second complaint

when a previous complaint on the same allegations

has been dismissed under s. 203 of the Code of

Criminal Procedure. But a second complaint

containing more or less the same allegations can

be entertained only in exceptional circumstances.

It is not possible nor desirable that the

exceptional circumstances must be stated with

particularity or precision. Generally speaking,

the exceptional circumstances may be classified

under three categories: (1) manifest error in the

earlier proceeding, (2) resulting 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. Where the previous order of dismissal

was passed on an incomplete record or on a

misunderstanding of the nature of the complaint, a

second complaint may be entertained. Where a

Magistrate misdirects himself as to the scope of

an enquiry under s 202, Code of Criminal

Procedure, and the mistake, made gives a wrong

direction to the whole proceeding on the first

complaint, the order of dismissal passed thereon

would be due. to a manifest error resulting in a

miscarriage of justice. In such a case, a second

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 46

complaint is entertainable.

299

Per Kapur and Hidayatullah, JJ.-There is no

legal bar to the entertainability of a second

complaint. It is only when the Magistrate had

misdirected himself, with regard to the scope of

the enquiry under s. 203, Code of Criminal

Procedure, or has passed an order misunderstanding

the nature of the complaint or the order is

manifestly unjust or absurd or the order is based

on an incomplete record can it be said that there

is such a manifest error or a manifest miscarriage

of justice that a second complaint on the same

allegations may be entertained. The other

exceptional circumstances in which a second

complaint may be entertained is when it is

supported by fresh and further evidence.

Case-law referred to.

In the case of fresh evidence it must be such

as could not have been with due diligence on the

part of the complaint adduced on the earlier

occasion.

Queen Empress v. Dole Gobinda Das I.L.R 28

Cal. 211, Dwarkanath Mandal v. Daniradha banerjee,

I.L.R. 28 Cal. 692 (F.B.) disapproved.

Allah Ditta v. Karam Bakshi, 12 Lah, 9 Ram,

Narain Chowdhary v. Punachand Jain, AIR 1949 Pat.

255, Hansabai v. Ananda, A.I.R. 1949 Bom. 384 and

Doraiswami v. Subramania, A I. R. 1918 Mad. 484,

approved.

In the present case permitting the second

complaint to proceed would be a gross abuse of

process.

Held, further, concurring with S.K. Das, J.,

that the Special Bench was properly constituted.

Per S. K. Das, J.-On the first complaint the

Presidency Magistrate had misdirected himself

regarding the scope of the enquiry under ss. 203

and 204 of the Code of Criminal Procedure and it

was a manifest error. The facts about the City

Exchange urged and fresh evidence were decisive of

a prima facie case for issuing process and it was

an exceptional circumstance justifying

entertaining the second complaint and not to

permit the trial of the case in such circumstances

would be a denial of justice.

Kumariah v. C. Naicker, A.I.R. 1946 Mad, 167

and Ramanand v. Sheri, I.L.R. 1. 56 All 425,

referred to.

Though Chapter II of the Rules of the High

Court (Appellate Side) in terms applies to Civil

cases, their substance could be applied to

criminal cases by the Chief Justice in

constituting a larger bench.

The substance of the allegations in the

complaint amounted to an offence of abetment by

conspiracy under

300

s. 107 Indian Penal Code and not the offence of

Criminal Conspiracy as defined by s. 120A and

therefore sanction under s. 196A of the Code of

Criminal Procedure was not necessary. The

distinction between the two offences lies in that

the first requires an overt act in pursuance of

the agreement whereas the second makes the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 46

agreement to do the unlawful act itself

punishable.

Basirul Hag v. State of West Bengal [1953]

S.C.R. 826 and Mulachy v. The Queen, (1868) L.R. 3

H.L. 306, referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal

Appeals Nos. 75 and 77 of 1961.

Appeal by special leave from the judgment and

order dated December 22-23, 1960, and from the

order dated March 17, 1961 of the Calcutta High

Court in Cr. Revision Nos. 1019 and 681 of 1959.

C.K. Daphtary, Solicitor General of India,

and I. N. Shroff, for the appellant (in Cr. A. No.

75/61).

Purushottam Trikamdas, Prasunchandra Ghosh,

S.C. Mitter and I. N. Shroff, for the appellant

(in Cr. A. No. 77 of 1961).

M. C. Setalvad, Attorney General of India,

Alak Gupta, S.N. Andley, Rameshwar Nath and P.L.

Vohra for the respondents.

1961. December 21. The judgment was delivered

by

S.K. Das, J.-I regret that I have come to a

conclusion different from that of my learned

brethren in these appeals. I proceed now to state

the necessary facts, the arguments advanced before

us and my conclusions on the various questions

urged.

By an order dated April 10, 1961 this Court

granted special leave asked for by the two

appellants herein, Pramatha Nath Talukdar and

Saurindra Mohan Basu, to appeal to this Court from

two orders made by the High Court of Calcutta, one

dated December 22/23, 1960 and the other dated

March 17, 1961. By the first order a Special

301

Bench of the Calcutta High Court dismissed two

applications in revision which the appellants had

made to the said High Court against an order of

the Chief Presidency Magistrate of Calcutta dated

April 11, 1959 by which the said Magistrate issued

processes against the two appellants for offences

alleged to have been committed by them under ss.

467 and 471 read with s. 109 of the Indian penal

Code on a complaint made by Saroj Ranjan Sarkar,

respondent herein. By the second order a Division

Bench of the said High Court refused the prayer of

the appellants for a certificate under Art.

134(1)(c) of the Constitution of India that the

case was a fit one for appeal to this Court. This

refusal was based primarily on the ground that the

order sought to be appealed from was not a final

order within the meaning of the Article aforesaid.

In pursuance of the special leave granted by

this Court four appeals were filed, two against

the order dated December 22/23, 1960 and the other

two against the order dated March 17, 1961. The

two appeals numbered 76 and 78 of 1961 from the

order dated March 17, 1961 were withdrawn on the

ground that special leave having been granted

against the order of the Special Bench dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 46

December 22/23, 1960, the appellants did not wish

to press the appeals from the later order dated

March, 17, 1961. Therefore, the present judgment

relates to the two appeals numbered 75 and 77 of

1961 which are from the judgment and order of the

Special Bench dated December 22/23, 1960.

The principal question which arises for

decision in these two appeals is whether a second

complaint can be entertained by a Magistrate who

or whose predecessor had, on the same or similar

allegation, dismissed a previous complaint, and if

so in what circumstances should such a second

complaint be entertained. The question is one of

302

general importance and has given rise to some

divergence of opinion in the High Courts.

Let me first state the facts which have led

to the filing of the second complaint in the

present case. Saroj Ranjan Sarkar, who is the

youngest brother of the late Nalini Ranjan Sakar-a

well-known public man, financier and industrialist

of Bengal-filed a petition of complaint in the

court of the Chief Presidency Magistrate,

Calcutta. On April 3, 1959, I do not pause here to

state the allegations made in that petition, a

shall have occasion to refer to them in detail

later on. The complaint was filed against four

persons-the appellants herein and two other

persons, Narendra Nath Law and Amiya Chakravarty.

A previous complaint on more or less the same

allegations was made by Promode Ranjan Sarkar,

second brother of the late Nalini Ranjan Sarkar.

That complaint was made on March 17, 1954 and was

dismissed under s. 203 of the Code of Criminal

Procedure by the then Chief Presidency Magistrate,

Shri N. C. Chakravarti, on August 6, 1954.

Thereafter, an application in revision was made by

Promode Ranjan Sarkar to the High Court of

Calcutta, which gave rise to Revision Case No.

1059 of 1954. This application in revision was

dismissed on July 8, 1955 by Debabrata Mookerjee,

J. Promode Ranjan Sarkar then applied for a

certificate under Art. 134(1)(c) of the

Constitution, but such a certificate was refused

by a Bench of the Calcutta High Court on September

1, 1955. Promode Ranjan Sarkar applied for special

leave from this Court and obtained such leave on

February 13, 1956. An appeal was filed in

pursuance of that special leave, but ultimately

Promode Ranjan Sarkar withdrew his appeal by

filing a petition on February 3, 1959. In that

petition he stated that at the intervention of

Common friends and well-wishers of the parties, he

had settled his disputes with the respondents

therein and did not want to proceed with the

appeal

303

The appeal was accordingly withdrawn on March 12,

1959. Then, within about 22 days of that order,

Saroj Ranjan Sarkar filed the complaint which has

given rise to the present proceedings. For

convenience and brevity, I shall refer to Promode

Ranjan Sarkar's complaint as the first complaint

and Saroj Ranjan Sarkar's as the second complaint.

It is necessary here to give a little more of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 46

the background history of the second complaint. As

stated earlier, the late Nalini Ranjan Sarkar was

a well-known person in Bengal. He was the

Governing or Managing Director of N. R. Sarkar &

Co. Ltd., which managed several public limited

companies, such as, Hindustan Development

Corporation Ltd., Hindustan Heavy Chemicals Ltd.,

and Hindusthan Pilkington Glass Works Ltd. He was

also closely connected with the Hindusthan Co-

operative Insurance Society Ltd., of which he held

a large number of shares. On January 4, 1948 he

obtained leave of absence from the Directors of N.

R. Sarkar & Co. Ltd. for a period of one year with

a view to joining the Ministry in West Bengal and

he assumed office as Finance Minister of the West

Bengal Government on January 23, 1948. Later, the

leave granted to him for one year was extended. He

owned 4649 shares of N. R. Sarkar & Co. Ltd.

Pramatha Nath Talukdar, who was a paid employee of

the Hindusthan Co-operative Insurance Society Ltd.

up to the end of July, 1953 was also a Director of

N. R. Sarkar & Co. Ltd. He held 299 shares of the

said company. Promode Rajan Sarkar held 50 shares.

Santi Ranjan Sarkar; son of a deceased brother of

Nalini Ranjan Sarkar, held one share. Thus, it

would appear that Nalini Ranjan Sarkar was the

owner of the largest number of shares of N. R.

Sarkar & Co., Ltd., and for all practical purposes

he controlled the affairs of that company. On July

31, 1951 Nalini Ranjan Sarkar executed a deed of

trust in respect of 3649 shares out of the

304

shares held by him in N. R. Sarkar & Co. Ltd. By

the said trust-deed he appointed Promode Ranjan

Sarkar, Pramatha Nath Talukdar and Narendra Nath

Law as the trustees; but the beneficiaries under

the trust-deed were his four brothers, namely,

Promode Ranjan Sarkar, Pabitra Ranjan Sarkar,

Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, as

also Santi Ranjan Sarkar, the son of a deceased

brother. It was alleged that the balance of 1000

shares held by Nalini Ranjan Sarkar was kept in

custody with Pramatha Nath Talukdar and according

to the case of the complainant these shares were

kept in deposit with Pramatha Nath Talukdar for

the benefit of the complainant and this brothers.

Nalini Ranjan Sarkar died on January 25, 1953. It

was alleged that a few days after the funeral

ceremony had been performed, Saurindra Mohan Basu

casually informed Promode Ranjan Sarkar that his

brother Nalini Ranjan Sarkar had executed two

documents to wit, an unregistered deed of

agreement dated January 19, 1948 by which Pramatha

Nath Talukdar was appointed Managing Director of

N.R. Sarkar & Co. Ltd. and a deed of transfer of

1000 shares dated February 5, 1951 in favour of

Pramatha Nath Talukdar. Promode Ranjan Sarkar and

his brothers did not give credence to the

information conveyed, and wanted to see the

documents. It was alleged that this request was

not complied with. On July 31, 1953, i.e. about

six months after the death of Nalini Ranjan Sarkar

Pramatha Nath Talukdar resigned from his salaried

post under the Hindusthan Co-operative Insurance

Society Ltd. and sought to assume control of N. R.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 46

Sarkar & Co. Ltd. as its Managing Director. This

led to some trouble between Promode Ranjan Sarkar

and the appellants and also to some correspondence

between Promode Ranjan Sarkar on one side and N.

R. Sarkar & Co. Ltd. on the other, details whereof

are not necessary for our purpose.

305

On September 22, 1953 a meeting of the Board of

Directors of N.R. Sarkar & Co. Ltd. was held. It

was alleged that the meeting was held irregularly

without any agenda and a resolution was adopted,

despite Promode Ranjan Sarkar's protest, by which

the appointment of Pramatha Nath Talukdar as

Managing Director of N. R. Sarkar & Co. Ltd. was

renewed for seven years. In September, 1953

Promode Ranjan Sarkar formally wrote to N.R.

Sarkar & Co. Ltd. for inspection of the alleged

deeds of agreement and transfer. On October 1,

1953 an inspection was taken, and on October 13,

1953 Promode Ranjan Sarkar was allowed to take

photographs of the relevant portions of the

documents. On this occasion Promode Ranjan Sarkar

also inspected the minutes of the proceedings of

N. R. Sarkar & Co. Ltd. and it was alleged that

the proceedings dated January 16, 1948 purporting

to bear the signature of Nalini Ranjan Sarkar were

forged. The main allegations in the first and

second complaints related to three documents and

were to the effect "that in order to assume

complete control over N. R. Sarkar & Co. Ltd. and

the concerns under its managing agency, the

accused persons entered into a criminal conspiracy

with one another and others unknown, to

dishonestly and fraudulently forge a deed of

agreement, a deed of transfer and make a false

document, to wit, minute book of N. R. Sarkar &

Co. Ltd. and in pursuance thereof dishonestly and

fraudulently forged and or caused to be forged and

used as genuine the said documents". It will be

noticed that three documents were stated to have

been forged, and they were-

(1) An unregistered deed of agreement

purporting to have been executed by the late

Nalini Ranjan Sarkar as Governing Director of N.

R. Sarkar & Co. Ltd. on January 19, 1948

appointing Pramatha Nath Talukdar as the Managing

Director of N. R. Sarkar & Co. Ltd. on a

remuneration of Rs. 1500-100-2000 per month. This

document bore

306

the signature of Saurindra Mohan Basu as a witness

attesting the signature of Nalini Ranjan Sarkar,

which signature was stated to have been forged.

(2) A transfer deed in respect of 1000 shares

of N. R. Sarkar & Co. Ltd. which were said to have

been entrusted to Pramatha Nath Talukdar,

transfering them to the latter for and alleged

consideration of rupees one lac purporting to have

been executed by the late Nalini Ranjan Sarkar on

February 5, 1951 with Saurindra Mohan Basu as the

attesting witness both for the transferor and the

transferee.

(3) Minutes of the proceedings of the Board

meeting of N.R. Sarkar & Co. Ltd. dated January

16, 1948 purporting to bear the signature of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 46

late Nalini Ranjan Sarkar and containing a

resolution to the effect that the Governing

Director approved of a draft agreement of

appointment between the Company and Pramatha Nath

Talukdar for appointing the latter as Managing

Director of the Company and that the Board of

Directors approved of the said draft agreement.

Of the aforesaid three documents the one

relating to the alleged transfer of 1000 shares

referred to as (2) above, is the subject of a

separate suit stated to be now pending in the

Calcutta High Court. That document is not,

therefore, directly the subject matter of the

second complaint. As to the unregistered deed of

agreement referred to as (1) above, it may be

stated that the original document could not be

later found, and on behalf of the appellants and

other accused persons it was stated that the

document was not in their possession or control.

As stated earlier, Promode Ranjan Sarkar had

obtained a photostatic copy of the relevant

portions of the document. As to this document the

main allegation of the complainant was that it was

engrossed on a rupee stamp-paper which had been

issued, on renewal, in the name of P.D.

Himatsinghka & Co., a firm of solicitors in

Calcutta

307

and evidence was led at the enquiry into the first

complaint that the paper was stolen from that firm

and furthermore that the signature on the document

purporting to be that of Nalini Ranjan Sarkar was

not his signature at all. With regard to the

minutes of the proceedings dated January 16, 1948

the allegation was that the minutes were typed on

a sheet of paper bearing the letter-head N.R.

Sarkar & Co. Ltd. with telephone number "City

6091" printed thereon; but the City Exchange did

not come into existence until December, 1948 and

the telephone connection relating to number "City

6091" was obtained for the first time by the

Hindusthan Co-operative Insurance Society Ltd. on

or about March 18, 1949; and therefore the paper

with the letter-head N. R. Sarkar & Co. Ltd. with

telephone number "City 6091" printed thereon could

not have been in existence on the alleged date of

the proceeding of the Board of Directors, namely

January 16, 1948. In the second complaint certain

other circumstances were also alleged in support

of the allegation that the unregistered deed of

agreement dated January 19, 1948 and the minutes

of the proceedings dated January, 16, 1948 were

forged. It is, however, unnecessary to refer to

those circumstances in detail here.

The learned Chief Presidency Magistrate, Shri

Bijayesh Mukherjee, who dealt with the second

complaint considered all the relevant materials

and came to the following conclusions:

(1) there was no delay in making the second

complaint, if one had regard to the circumstances

which led to the first complaint and the

withdrawal of the appeal in the Supreme Court on

March 12, 1959 arising out of the order made on

the first complaint;

(2) the dismissal of the first complaint and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 46

the application in revision arising therefrom by

Debabrata Mookerjee, J. did not, as a matter of

law,

308

operate as a bar to the entertainment of the

second complaint.

(3) the second complaint was not an attempt

at blackmail; and

(4) the relevant materials in the record

showed prima facie that the minutes of the

proceedings dated January 16, 1948 were forged and

so also the unregistered deed of agreement dated

January, 19, 1948.

The learned Chief Presidency Magistrate then

said:

"Prima facie, I am satisfied about the

truth of the allegations the complaint makes.

That apart, the complaint is for an offence

triable by a Court of sessions. And the

materials I see before me are such as in my

opinion may lead a reasonable body of men to

believe the truth thereof. Judged so, there

is in my opinion sufficient ground for

proceeding within the meaning of section 204

of the procedure Code.

On the question as to which of the four accused

persons against whom process should issue, the

learned Chief Presidency Magistrate came to the

conclusion that there was a prima facie case

against two of the accused persons only, namely,

Pramatha Nath Talukdar and Saurindra Mohan Basu.

Saurindra Mohan Basu, it may be stated here, was a

solicitor of N.R. Sarkar & Co. Ltd. and had

attested the signature of Nalini Ranjan Sarkar on

the unregistered deed of agreement. The learned

Chief Presidency Magistrate held that there was no

sufficient ground for proceedings against the

other two accused persons, namely, Narendra Nath

Law and Amiya Chakravarty.

Against the aforesaid order of the Chief

Presidency Magistrate two applications in revision

were filed by the appellants herein. These

applications

309

in revision were first heard by a division Bench

of two Judges of the Calcutta High Court, P. B.

Mukherjee and H. K. Bose, JJ. In view of the

importance of the questions raised in the two

applications in revision and some earlier

decisions of the Calcutta High Court bearing on

those questions to which I shall presently refer,

P.B. Mukherjee, J. came to the conclusion that the

applications should be referred to a larger Bench

to be constituted by the Chief Justice under the

rules of the Court. H.K. Bose. J. (as he then was)

was inclined to take the view that the

applications in revision must fail, but in

deference to the views expressed by P.B.

Mukherjee, J. agreed that the applications should

be referred to the Chief Justice for constituting

a larger Bench. The matter was then referred to

the learned Chief Justice, who constituted a

Special Bench of three Judges to hear the two

applications in revision. This Special Bench heard

the two applications in revision and dismissed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 46

them by its order dated December 22/23, 1960.

Three questions were agitated before the

Special Bench. The first was whether the Special

Bench was lawfully in seizin of the case and was

competent to deal with the applications in

revision. The second was whether the learned Chief

Presidency Magistrate had jurisdiction to take

cognizance of the offences alleged, in the absence

of a sanction under s. 196A of the Code of

Criminal Procedure. The third and the principal

question was whether it was open to the learned

Chief Presidency Magistrate to entertain a second

complaint on the same allegations when his

predecessor had dismissed the first complaint; and

if it was open to him to entertain the second

complaint should he have entertained it in the

circumstances of the present case ? The Special

Bench unanimously decided these three questions

against the appellants and further came to the

conclusion that there was no undue delay in making

the second

310

complaint; neither was it frivolous nor made in

bad faith. It further expressed the view that it

saw no reasons to differ from the finding of the

learned Chief Presidency Magistrate that there was

a prima facie case against the two appellants.

Now, as to the first question. Chapter II of

Rules of the High Court at Calcutta (Appellate

Side) deals with the constitution and powers of

the Benches of the Court. Rule 1 of the said

chapter says in effect that a Division Bench for

the hearing of appeals from decrees or orders of

the Subordinate Civil Courts shall consist of two

or more Judges as the Chief Justice may think fit;

there is a proviso [proviso (ii)] to the rule

which says that on the requisition of any Division

Bench, or whenever he thinks fit, the Chief

Justice may appoint a special Division Bench to

consist of three or more Judges for the hearing of

any particular appeal, or any particular question

of law arising in an appeal, or of the any other

matter. It is clear that the rule and the proviso

deal with the hearing of appeals from decrees or

orders of the Subordinate Civil Courts; in other

words, they deal with civil matters. Rule 9 of the

same chapter deals with criminal matter and sub-r.

(1) of the said rule says that a Division Bench

for the hearing of cases on appeal, reference, or

revision in respect of the sentence or order of

any Criminal Court shall consist of two or more

Judges. There is no proviso to this rule similar

to the proviso to r. 1, referred to earlier, and

the argument is that in the absence of such a

proviso it was not open to the Division Bench

consisting of Mukherjee and Bose, JJ. to refer the

case back to the Chief Justice for the

constitution of a larger Bench (though it was open

to the Chief Justice to constitute originally a

Division Bench of three Judges to hear the case),

and if the Judges were equally divided in opinion,

s. 429 of the Code of Criminal procedure would

apply and the case had to be laid before another

Judge and judgment given according to the

311

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 46

opinion of the third Judge. I am unable to accept

this argument as correct. It is clear from the

rules in Chapter II that the constitution of

Benches is a matter for the Chief Justice and r.

13 in Chapter II says that a Full Bench appointed

for any of the purposes mentioned in Chapter VII,

rr. 1 to 5, shall consist of five Judges or three

Judges as the Chief Justice may appoint. Now, r. 1

in Ch. VII says inter alia that whenever one

Division Bench shall differ from any other

Division Bench upon a point of law or usage having

the force of law, the case shall be referred for

decision by a Full Bench and r. 5 says that if any

such question arises in any case coming before a

Division Bench as Court of Criminal Appeal,

Reference or Revision, the Court referring the

case shall state the point or points on which they

differ from the decision of a former Division

Bench, and shall refer the case to a Full Bench,

for such orders as to such Bench seem fit. In his

judgment P.B. Mukherjee, J. referred to two

earlier decisions of the Calcutta High Court,

Nilratan Sen v. Jogesh Chandra Bhattacharia(1) and

Kamal Chandra Pal v. Gourchand Adhikary (2) and

observed that the question as to whether those

decisions were good law arose in the case and he

gave that as a reason for referring the case to

the Chief Justice for the constitution of a larger

Bench. Even if rr. 1 and 5 in Chapter VII may not,

strictly speaking, apply to the present case

because the Division Bench consisting of Mukerjee

and Bose JJ. did not formulate the point or points

on which they differed from the earlier Division

Bench decisions referred to by Mukherjee, J., I

think that the principle of those rules would

apply and it was open to the Chief Justice, on a

reference by the Division Bench, to constitute a

larger Bench to consider the case. I am also in

agreement with the view expressed by the Special

Bench that the absence of a proviso to r. 9 in

Chapter II correspon-

312

ding to the proviso to r. I does not take away the

inherent power of the Chief Justice to refer any

matter to Bench of three Judges. Sub-rule(1) of r.

9 itself provides that a Division Bench for the

hearing of cases on appeal, reference, or revision

in respect of the sentence or order of any

Criminal Court shall consist of two or more

Judges. Therefore, it was open to the Chief

Justice to constituted Bench of three Judges for

the hearing of the case and in my view it made no

difference whether he constituted such a Bench

originally or on a reference back by the Division

Bench. I further think that the Chief Justice must

have the inherent power to constitute a larger

Bench in special circumstances. Take, for

instance, a case where one Judge of the Division

Bench feels, for a sufficient and good reason,

that he should not hear the case. It is obvious

that in such a case the matter must be referred

back to the Chief Justice for the constitution of

another Bench. The Chief Justice, I think, must

possess such an inherent power in the matter of

constitution of Benches and in the exercise

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 46

thereof he can surely constitute a larger Bench in

a case of importance where the Division Bench

hearing it considers that a question of the

correctness or Otherwise of earlier Division Bench

decisions of the same Court will fall for

consideration in the case. Section 229 of the Code

of Criminal Procedure does not apply to such a

case because it is not a case where the Judges

composing the Court are equally divided in

opinion. Rather it is a case where the Judges

composing the Division Bench consider that the

case is one of such importance that it should be

heard by a larger Bench.

My conclusion, therefore, is that there was

nothing illegal in the Division Bench consisting

of Mukherjee and Bose. JJ. referring the case back

to the Chief Justice; nor was there anything

illegal in the Chief Justice constituting a

special Bench of

313

three Judges to hear the applications in revision.

The special Bench constituted by the Chief Justice

was lawfully in seizin of the case and was

competent to deal with it. The objection as to the

jurisdiction of the special Bench to hear the case

was, in my opinion, rightly overruled by it.

Now, as to section. Section 196A of the Code

of Criminal Procedure may be read first. That

section is in these terms:

"196A. No Court shall take cognizance of

the offence of criminal conspiracy punishable

under section 120B of the Indian Penal Code.

(1) in a case where the object of the

conspiracy is to commit either an

illegal act other than an offence, or a

legal act by illegal means, or an

offence to which the provisions of

section 196 apply, unless authority from

the "State Govern upon complaint made by

order or under authority from the "State

Government" or some officer empowered by

the "State Government" in this behalf,

or

(2) in a case where the object of the

conspiracy is to commit any non-

cognizable offence, or a cognizable

offence not punishable with death,

imprisonment for life or rigorous

imprisonment for a term of two years or

upwards, unless the "State Government",

or a Chief Presidency Magistrate or

District Magistrate empowered in this

behalf by the "State Government", has,

by order in writing, consented to the

initiation of the proceedings:

Provided that where the criminal

conspiracy is one to which the provisions of

subsection (4) of section 195 apply no such

consent shall be necessary."

314

The argument before us on behalf of the appellants

has proceeded on the footing that in para 5 of the

second complaint Saroj Ranjan Sarkar had alleged

that the accused persons had entered into a

criminal conspiracy with one another and other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 46

persons unknown, to dishonestly and fraudulently

forge certain documents and in pursuance thereof

either forged or caused to be forged those

documents and used them as genuine. This

allegation, it is argued attracted cl. (2) of s.

196A inasmuch as the object of the conspiracy was

to commit non-cognizable offences under ss. 467

and 471 of the Indian Penal Code; therefore, it

was necessary to obtain, by order in writing, the

consent of the State Government or of the Chief

Presidency Magistrate to the initiation of the

proceedings and such consent not having been

obtained, the issue of processes by the Chief

Presidency Magistrate violated the provisions of

s. 196A of the Code of Criminal procedure. The

special Bench repelled this argument on the

following grounds. It pointed out the distinction

between the offence of criminal conspiracy as

defined in s. 120A and punishable by s. 120B and

the offence of abetment by conspiracy as defined

in the clause, secondly, in s. 107 of the Indian

Penal Code. It then pointed out that the Chief

Presidency Magistrate did not take cognizance of

the offence of criminal conspiracy to commit

forgery which would be punishable under s. 120B

read with s. 467 of the Indian Penal Code, but he

took cognizance of the offence of abetment of

forgery punishable under s. 467 read with s. 109

of the Indian Penal Code and for this offence no

sanction under s. 196A of the Code of Criminal

Procedure was necessary. The special Bench further

expressed the view that the primary offences which

the second complaint disclosed where the offence

of forgery, of using forged documents as genuine,

and of abetment of the said offences and as

cognizance of these offences did not require

sanction or

315

prior consent of the authorities mentioned in s.

196A, the order of the Chief Presidency Magistrate

could not be said to have violated the provisions

of that section.

The correctness of these views of the special

Bench has been very seriously contested. I may

make it clear at the very outset that the

mandatory provisions of s. 196A of the Code of

Criminal Procedure cannot be evaded by resorting

to a mere device or camouflage.

The test whether sanction is or is not necessary

does not depend on mere astuteness of drafting the

petition of complaint. For example, in the second

petition of complaint under consideration before

us the heading indicated that the offences in

respect of which the petition of complaint was

filed were offences under ss. 467, 471 and 109 of

the Indian Penal Code; but in para. 5 of the

petition the allegation was that the accused

persons had entered into a criminal conspiracy

with one another and others unknown, to forge

certain documents. It would not be proper to

decide the question of sanction merely by taking

into consideration the offences mentioned in the

heading or the use of the expression "criminal

conspiracy" in para. 5. The proper test should be

whether the allegations made in the petition of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 46

complaint disclosed primarily and essentially an

offence or offences for which a consent in writing

would be necessary to the initiation of the

proceedings within the meaning of s. 196A(2) of

the Code of Criminal Procedure. It is from that

point of view that the petition of complaint must

be examined. There is another principle laid down

by this Court which should be kept in mind. The

allegations made in the complaint may have more

than one aspect; and may disclose more than one

offence. What would be the position when some of

the offences disclosed do not require any sanction

while others require sanction ? This question was

considered by this Court in

316

Basir-ul-huq v. State of West Bengal(1). That was

case in which the accused person lodged

information at a police station that X had beaten

and throttled his mother to death and when the

funeral pyre was in flames, he entered the

cremation ground with police; the dead body was

examined and the complaint was found to be false.

On the complaint of X the accused person was

charged with offences under s. 297, Indian Penal

Code (trespass to wound religious feelings) and s.

500, Indian Penal Code (defamation). It was

contended that as the complaint disclosed offences

under s. 182 and 211, Indian Penal Code, the Court

could not take cognizance of the case except on a

complaint by the proper authority under s. 195 of

the Code of Criminal Procedure. It was held that

the facts which constituted the offence under s.

297 where distinct from those which constituted an

offences under s. 182, as the act of trespass was

alleged to have been committed after the making of

the false report, so s. 195 was no bar to the

trial of the charge under s. 297. It was further

held that as regards the charge under s. 500 where

the allegations made in a false report disclose

two distinct offences, one against a public

servant and the other against a private

individual, the latter is not debarred by

provisions of s. 195 of the Code of Criminal

Procedure from seeking redress for the offence

committed against him. Referring to s. 195 of the

Code of Criminal Procedure Mahajan, J. who

delivered the judgment of the Court said:

"The statute thus requires that without

a complaint in writing of the public servant

concerned no prosecution for an offence under

section 182 can be taken cognizance of. It

does not further provide that if in the

course of the commission of that offence

other distinct offences are committed, the

magistrate is debarred from taking cognizance

in respect of those offences as well. The

allegation made

317

in a complaint may have a double aspect, that

is on the one hand these may constitute an

offence against the authority of the public

servant or public justice, and on the other

hand, they may also constitute the offence of

defamation or some other distinct offence.

The section does not per se bar the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 46

cognizance by the magistrate of that offence,

even if no action is taken by the public

servant to whom the false report has been

made. x x x x

As regards the charge under section 500,

Indian Penal Code, it seems fairly clear both

on principle and authority that where the

allegations made in a false report disclose

two distinct offences, one against the public

servant and the other against a private

individual, that other is not debarred by the

provisions of section 195 from seeking

redress for the offence committed against

him."

Keeping the aforesaid two principles in mind

let me examine the second complaint in this case

in order to find out what essential offences the

allegations made therein disclosed. Paragraph 5 of

the petition of complaint on which much reliance

has been placed on behalf of the appellant alleges

(1) that the accused persons entered into a

criminal conspiracy with one another and others

unknown, to forge certain documents; (2) that in

pursuance of the conspiracy those documents were

forged; or caused to be forged; and (3) that the

documents so forged were used as genuine. The

paragraph then recited three documents which were

said to have been forged. It is thus clear that

apart from the conspiracy, the second complaint

alleged that offences under ss. 467 and 471 of the

Indian Penal Code had also been committed. The

special Bench rightly pointed out that the

offences under ss. 467 and 471 of the Indian Penal

Code were distinct from the offence of criminal

conspiracy and did not require any prior consent

for the initiation of

318

Proceedings therefor under s. 196A(2) of the Code

of Criminal Procedure. The question, of therefore,

boils down to this: in view of the allegation that

there was a criminal conspiracy, was the chief

Presidency Magistrate debarred from taking

cognizance of the case even though certain other

distinct offences were alleged which did not

require sanction ? I am in agreement with the

special Bench that the answer to the question must

be in the negative. Furthermore, it appears to me

that though the expression "criminal conspiracy"

occurs in para. 5 of the complaint, the facts

alleged in the petition of complaint essentially

disclose an offence of abetment by conspiracy.

This brings us to the distinction between the

offence of criminal conspiracy as defined in s.

120A and the offence of abetment by conspiracy as

defined in s. 107 of the Indian Penal Code.

Section 120A which defines the offence of criminal

conspiracy and s. 120B which punishes the offence

are in Ch. VA of the Indian Penal Code. This

Chapter introduced into the criminal law of India

a new offence, namely, the offence of criminal

conspiracy. It was introduced by the criminal Law

Amendment Act, 1913 (VIII of 1913). Before that,

the sections of the Indian Penal Code which

directly dealt with the subject of conspiracy were

these contained in Ch. V and s. 121 (Ch. VI) of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 46

the Code. The present case is not concerned with

the kind of conspiracy referred to in s. 121A. The

point before us is the distinction between the

offence of abetment as defined in s. 107 (Ch. V)

and the offence of criminal conspiracy as defined

in s. 120A (Ch. VA). Under s. 107, second clause,

a person abets the doing of a thing, who engages

with one or more other person or persons in any

conspiracy for the doing of that thing, if an act

or illegal omission takes place in pursuance of

that conspiracy, and an order to the doing of that

thing. Therefore, in order to constitute the

offence of abetment by conspiracy, there

319

must first be a combining together of two or more

persons in the conspiracy; secondly, an act or

illegal omission must take place in pursuance of

that conspiracy, and in order to the doing of that

thing. It is not necessary that the abettor should

concert the offence with the person who commits

it. It is sufficient if he engages in the

conspiracy in pursuance of which the offence is

committed. It is worthy of note that a mere

conspiracy or a combination of persons for the

doing of a thing does not amount to an abetment.

Something more is necessary, namely, an act or

illegal omission must take place in pursuance of

the conspiracy and in order to the doing of the

thing for which the conspiracy was made. Before

the introduction of Ch. VA conspiracy, except in

cases provided by ss. 121A, 311, 400, 401 and 402

of the Indian Penal Code, was a mere species of

abetment where an act or an illegal omission took

place in pursuance of that conspiracy, and

amounted to a distinct offence. Chapter VA,

however, introduced a new offence defined by s.

120A. That offence is called the offence of

criminal conspiracy and consists in a mere

agreement by two or more persons to do or cause to

be done an illegal act or an act which is not

illegal by illegal means; there is a proviso to

the section which says that no agreement except an

agreement to commit an offence shall amount to a

criminal conspiracy unless some act besides the

agreement is done by one or more parties to such

agreement in pursuance thereof. The position,

therefore comes to this. The gist of the offence

of criminal conspiracy is in the agreement to do

an illegal act or an act which is not illegal by

illegal means. When the agreement is to commit an

offence, the agreement itself becomes the offence

of criminal conspiracy. Where, however, the

agreement is to do an illegal act which is not an

offence or an act which is not illegal by illegal

means, some act besides the agreement is

necessary.

320

Therefore, the distinction between the offence of

abetment by conspiracy and the offence of criminal

conspiracy, so far as the agreement to commit an

offence is concerned, lies in this. For abetment

by conspiracy mere agreement is not enough. An act

or illegal omission must take place in pursuance

of the conspiracy and in order to the doing of the

thing conspired for. But in the offence of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 46

criminal conspiracy the very agreement or plot is

an act in itself and is the gist of the offence.

Willes, J. observed in Mulcahy v. The Queen (1):

"When to agree to carry it into effect,

the very plot is an act in itself, and the

act of each of the parties, promise against

promise, actus contra actum, capable of being

enforced, if lawful, punishable if for a

criminal object or for the use of criminal

means."

Put very briefly, the distinction between the

offence of abetment under the second clause of s.

107 and that of criminal conspiracy under s. 120A

is this. In the former offence a mere combination

of persons or agreement between them is not

enough. An act or illegal omission must take place

in pursuance of the conspiracy and in order to the

doing of the thing conspired for; in the latter

offence the mere agreement is enough, if the

agreement is to commit an offence.

So far as abetment by conspiracy is concerned

the abettor will be liable to punishment under

varying circumstances detailed in ss. 108 to 117.

It is unnecessary to detail those circumstances

for the present case. For the offence of criminal

conspiracy it is punishable under s. 120B.

Having regard to the distinction pointed out

above, I am of the opinion that para. 5 of the

second complaint, though it used the expression

"criminal conspiracy" really disclosed an offence

of abetment by conspiracy. It made no allegation

321

of any agreement between the several persons at a

particular place or time. It said that the accused

persons complained against entered into a

conspiracy to forge certain documents were forged

or caused to be forged. In other words, an illegal

act was done in pursuance of the conspiracy and

furthermore the documents so forged were used as

genuine. Having regard to these allegations in

para. 5 of the second complaint, I am unable to

hold that the learned 'Chief Presidency Magistrate

was wrong in taking cognizance of the offence of

abetment by conspiracy, for which offence no

consent or sanction under s. 196A of the Code of

Criminal Procedure was necessary. Therefore, there

was violation of the provisions of that section.

In this view of the matter it is unnecessary

to consider the correctness or otherwise of the

further view expressed in some of the decisions

(see, for example, State of Bihar v. Srilal

Kejriwal (1) to which the special Bench has

referred) that there the matter has gone beyond a

mere conspiracy and substantive offences are

alleged to have been actually committed in

pursuance thereof, ss. 120A and 120B are wholly

irrelevant. That view has not been accepted as

correct by some of the other High Courts. In the

State of Andhra Pradesh v. Kandimalla Subbaiah (2)

this Court held that offences created by ss. 109

and 120B, Indian Penal Code were distinct

offences, though for a reason stated somewhat

differently from what I have stated. It further

held that where a number of offences were

committed by several persons in pursuance of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 46

conspiracy, it was not illegal to charge them with

those offences as well as with the offence of

conspiracy to commit those offences, though it was

not desirable to charge the accused persons with

conspiracy with the ulterior object of letting in

evidence which would otherwise be inadmissible and

furthermore, it was undesirable to complicate a

322

trial by introducing a large number of charges

spread over a long period. The question was

treated as one of propriety rather than of

legality. The question of sanction was also

considered in that case, but in view of the order

of remand passed, no opinion was expressed

thereon.

The special Bench expressed the view that it

was not necessary to go to the extent of saying

that in a case of this nature ss. 120A and 120B

became wholly irrelevant. The special Bench

proceeded on the footing that irrespective of

whether ss. 120A and 120B became wholly irrelevant

or not the second complaint undoubtedly disclosed

an offence of abetment by conspiracy and it was

open to the Chief Presidency Magistrate to take

cognizance of that offence. I think that there are

no good reasons for holding that the view taken by

the special Bench is not correct. In my opinion,

the special Bench rightly overruled the objection

as to the alleged violation of the provisions of

s. 196A of the Code of Criminal Procedure.

Now, I come to the third and principal

question agitated in these appeals. On behalf of

one of the appellants, Saurindra Mohan Basu, Mr.

Purushottam Trikumdas has argued before us that

when the first complaint containing more or less

the same allegations was dismissed under s. 203 of

the Code of Criminal Procedure by the Chief

Presidency Magistrate, it was not at all open to

his successor to entertain the second complaint.

He has put the matter as one of law and has argued

that the only way of getting rid of an order of

dismissal under s. 203 of the Code of Criminal

Procedure known to the Code of Criminal Procedure

is to have it act aside in accordance with the

procedure laid down in ss. 436 and 439 of the

Code. He has further argued that, as a matter of

law, a second complaint is not entertainable as

long as the order of dismissal under s. 203 of the

Code

323

of Criminal Procedure is not set aside by a

competent authority. His argument is that the two

decisions in Nilratan Sen v. Jogesh Chandra

Bhattacharjee(1) and Kamal Chandra Pal v.

Gourchand Adhikary (2) should be held as good law.

Section 403 of the Code of Criminal Procedure is

relevant to this argument. It embodies the well-

established rule of common law that a man may not

be put twice in peril for the same offence and

that no man should be vexed with several trials

for offences arising out of identical acts. An

Explanation appended to the section says inter

alia that the dismissal of complaint or the

discharge of accused person is not an acquittal

for the purposes of the section. If the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 46

Legislature had intended that the dismissal of

complaint or the discharge of an accused person

would be a bar to fresh proceeding on the same

allegations unless the order of dismissal or

discharge were set aside by a higher court, it

would have said so either explicitly or by

omitting the Explanation altogether. Therefore,

the effect of the Explanation is that under s. 403

a fresh trial is barred only in cases of acquittal

or conviction by a court of competent

jurisdiction, coming within the purview of sub-s.

(1) thereof. This aspect of the question was

considered in Queen Empress v. Dolegobind Dass

(3), which was a case dealing with a previous

order of discharge of the accused person. In that

case, Maclean, C. J. referred to the decision in

Nilratan Sen's case and said:

"There is no express provision in the

Code to the effect that the dismissal of a

complaint shall be a bar to a fresh complaint

being entertained so long as the order of

dismissal remains unreversed' (see per

Benerjee, J. in Nilratan Sens' v. Jogesh

Chandra Bhattacharjee (supra). I agree in

that. If, then there be no express provision

324

in the Code, what is there to warrant us in

implying or in effect introducing into the

Code a provision of such serious import x x

x? In the absence of any other provision in

the Code to justify such an implication x x x

x I can appreciate no sound ground for the

Court so acting; were it to do so it would go

perilously near to legislating, instead of

confining itself to construing the Acts of

the Legislature."

The question was then considered by a Full

Bench of the Calcutta High Court in Dwarka Nath

Mondul v. Beni Madhab Banerjee (1) 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(2) and Kamal Chandra Pal's case(3) were

referred to in the arguments as summarised in the

report, but the view expressed therein was not

accepted. Dealing with the question Princep, 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 recognised 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

witness and to hear them in the presence of

the accused."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 46

325

The same view was expressed by the Madras

High Court in In re. Koyassan Kutty (1) 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 (2),

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 (3) 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

(4), Ramanand v. Sheri (5), and Allah Ditta v.

Karam Baksh (6). In all these decisions it was

recognised 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 dismissed. The

question of the existence of exceptional

circumstances for the entertainment of a second

complaint is a question to which I shall come

later. At the present moment, I am considering the

argument of Mr. Purshottam Tricumdas that the law

prohibits altogether the entertainment of a second

complaint when a previous complaint on the same

allegations had been dismissed under s. 203 of the

Code of Criminal Procedure. On this question the

High Courts appear to me to be almost unanimously

against the contention of Mr. Purshottam

Tricumdas, and for the reasons given in the

decisions to which I have earlier referred, I

326

am unable to accept his contention. I 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 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 46

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."

Thus, according to this decision, the

exceptional circumstance must be such as would

lead the Magistrate to think that the previous

order of dismissal was due to a manifest error or

resulted in a manifest miscarriage of justice. In

re. Koyassan Kutty (2) Sadasiva Aiyar, J.

formulated the test of exceptional circumstances

in the following words:

"Taking it then that the discharge was

proper and legal, there is no doubt nothing

in law against the entertainment of a second

327

complaint on the same facts as a discharge is

not equivalent to an acquittal; but I think

that unless very strong grounds are shown a

person who has been charged once and

discharged ought not to be harassed again on

the same charge. It is not alleged that new

facts have been discovered which the police

did not know when they brought the first

charge."

In this decision the test formulated was the

discovery of new facts which were not known when

the first charge of complaint was made. In

Kumariah v. Chinna Naicker(1) the same test was

again applied when it was observed:

"There is nothing to indicate that there

was no proper investigation on the previous

complaint or that there was any necessity for

investigating the second complaint. x x x No

additional witness had been cited in the

second complaint, nor, as pointed out by the

Additional Magistrate, was it alleged that

any other kind of evidence had been

discovered or was likely to be forthcoming."

It is worthy of note, however, that

Kuppuswami Aiyar, J. did not say that the

discovery of a new fact or new evidence must be of

such a character that it was not known to the

complainant when the prior complaint was brought

and dismissed. In Hansabai Sayaji v. Ananda Ganuji

(2) it was pointed out that the circumstance that

the second complaint was filed by a person other

than the one who made the first complaint made no

difference and the test laid down in some early

Rangoon High Court decisions [Ma The Kin v. Nga E

Tha (3) and U Shwe v. Ma Sein Bwin (4) ], was

accepted as the correct test. In Ma The Kin's case

(supra) the test was thus expressed:

328

"It is the duty of a Magistrate,

therefore, who receives a complaint in a case

where there has been a previous order of

dismissal or discharge, not to issue process,

unless he is plainly satisfied that there has

been some manifest error or manifest

miscarriage of justice, or unless new facts

are adduced which the complainant had not

knowledge of or could not with reasonable

diligence have brought forward in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 46

previous proceedings."

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 (1) 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

within 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 (2), 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 complaint was dismissed under s. 203

329

of the Code of Criminal Procedure. I do not think

that in a matter of this kind it is either

possible or even desirable that the exceptional

circumstances must be stated with any more

particularity or precision. The learned Advocate

for the respondent argued before us that a new

category should be added and he called it

"frustration of justice". I am of the view that

apart from any question of felicity of this new

expression, this new category does not give any

more assistance towards explaining the exceptional

circumstances which must exist before a second

complaint on the same allegations can be

entertained. I am content in this case to proceed

on the footing that, the Magistrate must be

satisfied that there was a manifest error or a

miscarriage of justice before he can entertain a

second complaint on the same facts.

In this case, two exceptional circumstances

were adverted to before us. One is that the

learned Chief Presidency Magistrate who dealt with

the first complaint completely misdirected himself

as to the true scope and effect of ss. 203 and 204

of the Code of Criminal Procedure and this, it is

contended, resulted in a manifest miscarriage of

justice when he dismissed the first complaint

under s. 203 of the Code of Criminal Procedure. I

am of the view that there is substance in this

contention. Section 203 of the Code of Criminal

Procedure states that the Magistrate may dismiss

the complaint, if, after considering the statement

on oath, if any, of the complainant and the

witnesses and the result of the investigation or

enquiry, if any, under s. 202, there is in his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 46

judgment no sufficient ground for proceeding.

Section 204 lays down that if in the opinion of

the Magistrate taking cognizance of an offence

there is sufficient ground for proceeding, he

shall issue a summon or a warrant, as the case may

require. What is the true scope and effect of the

expression

330

"sufficient ground for proceeding" occurring in

the aforesaid two sections ? This was considered

by this Court in Vadilal Panchal v. Dattatraya

Dulaji Ghadigaonker (1). With reference to ss.

200, 202 and 203 of the Code of Criminal Procedure

it was there observed:

"The inquiry is for the purpose of

ascertaining the truth or falsehood of the

complaint; that is, for ascertaining whether

there is evidence in support of the complaint

so as to justify the issue of process and

commencement of proceedings against the

person concerned. The section does not any

that a regular trial for adjudging the guilt

or otherwise of the person complained against

should take place at that stage; for the

person complained against can be legally

called upon to answer the accusation made

against him only when a process has issued

and he is put on trial."

It was further observed that if the Magistrate had

not misdirected himself as to the scope of an

enquiry under s. 202 and had applied his mind

judicially to the materials before him, it would

be erroneous in law to hold that a plea based on

an exception could not be accepted by in arriving

at his judgment. In another decisions of this

Court Ramgopal Genapatria Ruia v. State of Bombay

(2) the expression "sufficient grounds" occurring

in ss. 209, 210 and 213 of the Code of Criminal

Procedure was considered and it was held that the

expression did not mean sufficient grounds for the

purpose of conviction but meant such evidence as

would be sufficient to put the accused upon trial

by the jury dealing with the first complaint the

learned Chief Presidency Magistrate proceeded to

consider not whether there was

331

sufficient ground for proceeding within the

meaning of ss. 203 and 204 of the Code of Criminal

Procedure but whether there was sufficient

evidence for conviction of the accused persons. In

my opinion, this approach was completely wrong and

resulted in a manifest miscarriage of justice. The

learned Chief President Magistrate said:

"In cases depending on circumstantial

evidence in order to justify any inference

that an offence has been committed the

incriminating facts must be incompatible with

innocence of the person accused and incapable

of explanation upon any other reasonable

hypothesis than that of his guilt. If the

circumstances are found to be as consistent

with the guilt of the accused, no inference

of guilt can be drawn. In the present case

the circumstances above equally may lead to

the inference that the document was ante-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 46

dated and might or might not have been

forged. Therefore the circumstances are not

precise to be of any value as evidence."

These observations clearly show that the learned

Chief Presidency Magistrate misdirected himself as

to the true scope and effect of ss. 203 and 204 of

the Code of Criminal Procedure. He did not keep in

mind the true purpose of the enquiry before him

which was to ascertain whether there was evidence

in support of the complaint so as to justify the

issue of process and commencement of proceedings

against the accused persons. He further failed to

keep in mind that ss. 203 and 204 of the Code of

Criminal Procedure did not say that a regular

trial for judging the guilt or otherwise of the

person complained against should take place at

that stage. It was not for learned Chief

Presidency Magistrate to apply the test whether

the circumstances were or were not incompatible

with the, innocence of the accused persons. The

332

purpose of the enquiry before him was merely to

ascertain prime facie the truth or falsehood of

the complaint. Instead of holding an enquiry into

the complaint, the learned Chief Presidency

Magistrate proceeded as though he was trying the

ease itself on merits. I consider that this

mistake on the part of the learned Chief

Presidency Magistrate gave a wrong direction to

the whole proceedings on the first complaint and

the order of dismissal passed by him was due to a

manifest error and resulted in miscarriage of

justice.

The second exceptional circumstance is as to

the presence of the telephone number "City 6091"

printed on the sheet of paper on which were typed

the minutes of the proceedings dated January 16,

1948. When the first complaint was dealt with by

the Chief Presidency Magistrate no evidence was

led to show that the City Exchange did not come

into existence until December, 1948 and that the

telephone connection relating to that particular

number was obtained for the first time by the

Hindusthan Co-operative Insurance Society Ltd. on

or about March 18, 1949. This I think, would be a

new matter which was not considered when the first

complaint was dismissed under s. 203 of the Code

of Criminal Procedure. There was a good deal of

argument as to whether this matter relating to the

City Exchange was known to the complainant and his

brothers from before, and if so, why they did not

bring it to the notice of the learned Chief

Presidency Magistrate who dealt with the first

complaint. it appears that an application dated

June 7, 1955 was made before Debabrata Mookerjee

J. who heard the application in revision with

regard to the first complaint. In that application

certain statements were made with regard to the

City Exchange. Those statements did not, however,

include any averment as to the knowledge of the

complainant, Promode Ranjan Sarkar, about

333

the facts relating to the City Exchange and

telephone number "City 6091". The application

merely stated that the facts stated therein were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 46

matters of public history and it was essential in

the ends of justice to take judicial notice

thereof. Debabrata Mookerji, J. apparently

rejected this application but did not record any

formal orders on that date. He recorded formal

orders after he had dismissed the application in

revision. He said therein that he was not prepared

to take into consideration the facts alleged in

the application dated June 7, 1955 as they related

to new matters. The argument on behalf of the

appellants before us is that the facts relating to

the City Exchange were not new matters, because

the complainant, Saroj Ranjan Sarkar, nowhere said

that he did not know them before. The argument,

therefore is that it does not fulfil the test of

"new facts which the complainant have no knowledge

of or could not with reasonable diligence have

brought forward in the previous proceedings". The

learned Advocate for the respondent has, in my

opinion, rightly submitted that it is somewhat

illogical to say at one stage of the proceedings

that the matter was a new matter and could not,

therefore, be taken into consideration and at a

later stage to say that it is not a new matter and

therefore could not be taken into consideration.

This much, however, is clear that the matter

relating to the City Exchange and in particular

telephone number "City 6091" was not at all

considered when the first complaint was dismissed

under s. 203 of the Code of Criminal Procedure.

This matter is of some importance because if there

was no such telephone number on January 16, 1948,

the minutes of the proceedings purporting to be of

that date must have come into existence on a later

date. This would have great relevance and bearing

on the allegation of forgery made with regard to

the minutes of the proceedings dated January 16,

1948.

334

On behalf of Saurindra Mohan Basu it was

further contended that there was not even prima

facie evidence against him and the learned Chief

Presidency Magistrate was wrong in issuing process

against him. It is only necessary to point out

that the learned Chief Presidency Magistrate found

that there was a prima facie case against

Saurindra Mohan Basu. He had attested the

signature of the late Nalini Ranjan Sarkar and if

that signature was forged, then that would be

prima facie evidence against Saurindra Mohan Basu

also.

My learned brethren have taken the view that

the entertaining of the second complaint in the

circumstances of this case is a gross abuse of the

processes of the Court. I find myself unable to

subscribe to that view. My conclusion is just the

opposite, namely, that the entertaining of the

second complaint fully serves the interests of

justice. I am further of the opinion that its

dismissal would defeat the ends of justice. In

this connection, I have already referred to the

two exceptional circumstances which exist: one is

that the learned Chief Presidency Magistrate who

dealt with the first complaint completely

misdirected himself as to the true scope and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 46

effect of ss. 203 and 204 of the Code of Criminal

Procedure; the second is that Debabrata Mookerjee,

J. wrongly refused to take into consideration the

circumstances relating to the installation of the

City Exchange and telephone number "City 6091",

circumstances which had a decisive bearing on the

allegation of forgery made with regard to the

minutes of the proceedings dated January 16, 1948.

Even a cursory perusal of the order of the Chief

President Magistrate (Shri N. C. Chakravarti)

dated August 6, 1954 with regard to the first

complaint shows that the learned Chief Presidency

Magistrate proceeded on the footing as though he

was trying a case based entirely on circumstantial

evidence; he formulated

335

the tests for drawing conclusions from

circumstantial evidence and applying those tests,

he came to the conclusion that the complaint was

not true. He rejected the evidence of the hand-

writing expert as though it was his function to

try the case. He rejected the enquiry report of

Shri A. B. Syam (who held that there was a prima

facie case for the issue of process) on very

insufficient grounds. He even went to the length

of judging for himself the peculiar

characteristics of Nalini Ranjan Sarkar's hand-

writing depending on the personality of the

writer. In my view, in all these matters the

learned Chief Presidency Magistrate misdirected

himself as to the true scope of the enquiry before

him and he forgot that what he had to find was

whether prima facie there was believable evidence

in support of the allegations made in the

complaint. This does not necessarily mean that a

Magistrate dealing with a complaint is obliged "to

bind himself to a mere mechanical or a wholly

uncritical acceptance of the complainant's story".

Indeed, it is the duty of the Magistrate to judge

the materials on which he has to make up his mind

as to the sufficiency or otherwise of the ground

for proceeding further with the complaint and in

judging the materials he must sift them and submit

them to a critical examination. This aspect of the

question was argued before Debabrata Mookerjee, J.

and he referred to it in his judgment. I say this

without meaning any disrespect to the learned

Judge, but it appears to me that he missed the

distinction which was pointed out by this Court in

Ramgopal Ganpatrai Ruia v. The State of Bombay(1)

namely that the expression "sufficient grounds"

occuring in ss. 209, 210 and 213 of the Code of

Criminal Procedure does not mean sufficient

grounds for the purpose of conviction, but means

such evidence as is sufficient to put the accused

person upon trial by the jury. In ss. 203 and 204,

Criminal Procedure Code, the expres-

336

sion is "sufficient ground for proceeding" which

really means sufficient ground for proceeding with

the complaint. Sufficient ground for proceeding

with the complaint is one matter and sufficient

ground for convicting an accused person is quite a

different matter. It is this distinction which has

to be kept in mind and the failure to keep such a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 46

distinction in mind in the present case has

resulted in a manifest error. Debabrata Mookerjee,

J. detailed seven circumstances as those on which

the complainant relied in support of the

allegation of forgery. He then went on to deal

those circumstances as though the function of the

Court then was to find out whether there was

sufficient ground for convicting the accused

person. I refer particularly to the view expressed

by the learned Chief Presidency Magistrate to the

effect that one of the documents in question might

have been ante-dated by Nalini Ranjan Sarkar

himself. This was a suggestion made on behalf of

the accused persons as a possible defence to the

charge of forgery and it was not the function of

the Chief Presidency Magistrate to consider the

defence at that stage. Debabrata Mookerjee, J.

himself said:

"If, on the other hand, the Magistrate

has met the facts alleged by the complainant

by anticipating possible defences to the

charge, thus travelling beyond the facts

themselves and the inferences and the

probabilities legitimately raised by them, he

must be held to have exceeded the allowable

limits of an initial test of the

complainant's story."

Yet, the possible defence that Nalini Ranjan

Sarkar might have himself ante-dated the document

was not only considered by the learned Chief

Presidency Magistrate but was accepted by

Debabrate Mookerjee J.. This, in my opinion,

clearly demonstrates the manifest error or

injustice which has taken place in this case,

though in the concluding part of his

337

judgment Debabrata Mookerjee, J. expressed the

view that he did not consider that the learned

Chief Presidency Magistrate had over-stepped the

permissible limits of a preliminary probe into the

truth or otherwise of the complainant's story. He

further said that in his view the learned Chief

Presidency Magistrate in sifting the materials

offered did not dispose of them by anticipating a

possible defence of the parties; yet the one

possible defence to the charge of forgery was that

Nalini Ranjan Sarkar might himself have antedated

the document in question and that very defence was

considered and accepted not only by the learned

Chief Presidency Magistrate but by Debabrata

Mookarjee, J. also.

The second mistake which led to a manifest

injustice was the refusal to take into

consideration the circumstances relating to the

installation of the City Exchange and the

telephone number "City 6091". Debabrata Mookerjee,

J. made no orders on the application dated June 7,

1955. In his final order he said:

"The application speaks for itself. I

was not prepared on that date to take any

notice of the new matters mentioned in that

application and I adhere to my decision."

In my view Debabrata Mookerjee, J. was grievously

in error in rejecting the application. As I have

said earlier, the circumstances relating to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 46

installation of the City Exchange and telephone

number "City 6091" had a decisive bearing on the

truth or otherwise of the allegation of forgery

and to reject the application to take those

circumstances into consideration really amounted

to a denial of justice. Debabrata Mookerjee, J.

took the view that it was a new matter which could

not be taken into consideration and, pradoxically

enough, the argument before us is that not being a

new matter, it should not have been taken into

consideration

338

in connection with the second complaint. This

paradox clearly demonstrates the injustice that

will result from a failure to take into

consideration circumstances which are decisive of

the allegations made in the complaint. When the

complainant made an application for a certificate

for appeal to the Supreme Court against the order

passed by Dababrata Mookerjee. J., he forcefully

contended that the refusal to take notice of the

circumstances relating to the installation of the

City Exchange amounted to a denial of justice.

This application was dealt with by a Bench of two

Judges of the Calcutta High Court (Das Gupta and

Bachawat, JJ.). The learned Judges expressed the

view that if they were dealing with the matter,

they would have thought it right to refer to the

appropriate books for ascertaining the date on

which the City Exchange came into existence. They,

however, felt that the matter was within the

discretion of Debarata Mookerjee, J. and they were

not prepared to give a certificate in a matter of

discretion. Another point which was urged before

that Bench was this. The complaint was for

offences triable by the Court of sessions and the

question which the learned Chief Presidency

Magistrate had to put himself was not whether he,

for himself, believed the allegations to be true

but whether the materials before him were such

that thereupon a reasonable body of men might

believe the allegations to be true. The learned

Judge said:

"In our judgment there is considerable

force in this argument, but at the same time

we have to take notice of the fact that this

question does not appear to have been decided

by the courts."

Since those observations were made, a decision has

been given by this Court and that decision

supports the contention urged on behalf of the

complainant. The matter then came to this Court on

an applica-

339

tion for special leave, and special leave was

granted by this Court on February 13, 1956. An

appeal was filed in pursuance of that special

leave, but ultimately Promode Ranjan Sarkar

withdrew his appeal by filing a petition on

February 3, 1959. In that petition he stated that

at the intervention of common friends and well

wishers of the parties, he had settled his

disputes with the respondents therein and did not

want to proceed with the appeal a statement which,

in the circumstances of this case, amounts almost

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 46

to compounding a felony. The appeal was

accordingly withdrawn on March 12, 1959. The

present complaint, Saroj Ranjan Sarkar, alleged in

his petition of complaint that the withdrawal of

the appeal filed in this Court in the

circumstances stated above was due to undue

influence exercised by the accused persons.

Whether that allegation is correct or not can only

be determined after evidence has been led. There

are, however, circumstances which seem to me

indicate that the withdrawal of the appeal in this

Court was for the purpose of defeating the ends of

justice. The accused persons must have realised

that if the evidence relating to the installation

of the City Exchange and telephone No. "City 6091"

was available and considered, then there would be

no escape from the position that the minutes of

the proceedings of the Board meeting of N.R.

Sarkar and Co. Ltd., dated January 16, 1948 must

have been forged and this aspect of the matter was

very rightly emphasised by the learned Chief

Presidency Magistrate (Shri Bijayesh Mukherjee)

who dealt with the second complaint as also by the

Special Bench of three Judges who dealt with the

matter on the revision applications made against

the order of the learned Chief Presidency

Magistrate on the second complaint. It is also

worthy of note that this Court must have granted

special leave in respect of the order passed on

the first complaint, because it felt that there

were arguable points in support of the

340

application for special leave, one of such points

apparently being the refusal to consider the

circumstances relating to the installation of the

City Exchange. On the second complaint the learned

Chief Presidency Magistrate, as also the High

Court, took those circumstances into consideration

and rightly held that those circumstances clearly

indicated that the allegations made in the

complaint were prima facie true. The learned Chief

Presidency Magistrate further held that having

regard to the antecedent circumstances, there was

no undue delay in filing the second complaint. He

further held that there was no intention to

blackmail, in the sense that one brother having

failed on the first complaint, another brother was

fraudulently trying to start afresh the criminal

law in motion. These findings of the learned Chief

Presidency Magistrate were accepted by a Special

Bench of three Judges of the Calcutta High Court.

I have heard nothing in the course of the

arguments addressed before us which would justify

me to go behind those findings, particularly in an

appeal filed by special leave under Art. 136 of

the Constitution. The learned Chief Presidency

Magistrate and a Bench of three Judges of the

Calcutta High Court held specifically on the

second complaint that there was a prima facie case

and the dismissal of the first complaint resulted

in manifest injustice. I see no reasons to differ

from the view thus expressed by the learned Chief

Presidency Magistrate and the High Court.

For these reasons I have come to the

conclusion that there are no good grounds for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 46

interfering with the judgment and order of the

Special Bench dated December 22/33, 1960. I would

accordingly dismiss the two appeals.

The Judgment of Kapur and Hidayatullah, JJ.,

was delivered by

KAPUR, J.-There are two appeals against the

judgment and order of the High Court of

341

Calcutta which raise the question of competency of

a second complaint in regard to the same matter

after the first complaint has been dismissed under

s. 203 of the Code of Criminal Procedure. The

respective appellants in the two appeals are P. N.

Taluqdar and Sourindra Mohan Basu an attorney of

Calcutta against whom process has been issued by

the Chief Presidency Magistrate Calcutta on a

complaint filed by the respondent Saroj Ranjan

Sarkar.

The facts of these appeals are these: In 1944

a private limited company-N. R. Sarkar & Co.,

Ltd.-was formed by the late Mr. N. R. Sarkar, who

was a well known financier and industrialist and a

public man of Bengal. This company was the

Managing Agent of several public limited companies

such as Hindusthan Development Corporation Ltd.,

Hindusthan Chemicals Limited, Hindusthan

Pilkington Glass Works Limited etc. Mr. N. R

Sarkar was the Managing Director of N. R. Sarkar &

Co., Ltd. Out of the share capital of this company

he held 4649 shares. His younger brother Promode

Ranjan Sarkar held 50 shares. Appellant P. N.

Taluqdar who was a paid employee of the Hindusthan

Cooperative Insurance Co., Ltd. held 300 shares

and was a director of the Company and Shanti

Ranjan Sarkar, a son of N. R. Sarkar's deceased

brother, held one share. As Mr. N. R. Sarkar

became the Finance Minister in the West Bengal

Government, he obtained leave of absence on

January 4, 1948, from the directors of N. R.

Sarkar & Co. Ltd. for a period of one year which

was subsequently extended for another year. This

was by a resolution passed on March 10, 1948. Mr.

N. R. Sarkar joined the Government on January 23,

1948 and in August 1948 Dr. N. N. Law became a

director of N. R. Sarkar & Co., Ltd.

On July 31, 1951 Mr. N. R. Sarkar executed a

deed of trust in respect of 2920 shares out of his

342

holding in Hindusthan Cooperative Society Ltd. and

3649 shares out of the shares held by him in N. R.

Sarkar & Co. Ltd. By this deed he appointed as

trustees his younger brother Promode Ranjan

Sarkar, appellant P. N. Taluqdar and Dr. N. N. Law

and the beneficiaries under the trust deed were

his four younger brothers including the

complainant and Shanti Ranjan Sarkar, his nephew.

It is alleged that the balance of 1,000 shares was

to be kept in trust by the appellant P. N.

Taluqdar for the benefit of his brothers and

nephew. N. R. Sarkar died on January 25, 1953.

It is alleged that a few days after the death

of Mr. N. R. Sarkar, the appellant, Sourindra

Mohan Basu in a casual manner informed Promode

Ranjan Sarkar that his brother N. R. Sarkar had

executed two documents one an unregistered deed of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 46

agreement dated January 19, 1948, appointing the

appellant P. N. Taluqdar as the Managing Director

of N. R. Sarkar & Co., Ltd. and a deed of transfer

dated February 5, 1951, transferring 1,000 shares

in N. R. Sarkar & Co. Ltd., in his P. N.

Taluqdar's) favour. Promode Ranjan Sarkar and his

brothers without giving much credence to this

information wanted to see the documents but they

were not allowed to do so. On July 31, 1953,

appellant P. N. Taluqdar resigned from the

Hindusthan Cooperative Insurance Society Ltd., in

order to take control of N. R. Sarkar & Co Ltd.,

as it Managing Director. This led to trouble

between Promode Ranjan Sarkar and the appellant P.

N. Taluqdar and there was some correspondence

between Promode Ranjan Sarkar and the appellant P.

N. Taluqdar which it is unnecessary to refer to.

At a meeting of the Board of Directors of N. R.

Sarkar & Co., held on September 22, 1953, the

appointment of appellant P. N. Taluqdar as

Managing Director of N. R. Sarkar & Co. Ltd., was

renewed for a period of seven years. This in spite

of the

343

protest of Promode Ranjan Sarkar and in spite of

the fact that that item was not on the agenda of

the meeting.

On October 1,1953, Promode Ranjan Sarkar took

inspection of the agreement. On October 13, 1953,

he took inspection of the Minute book and took

photostat copies of some of the documents but not

of the resolution of January 16, 1948. It is

alleged that the appellants and other entered into

a criminal conspiracy and fraudulently forged

certain documents which in the complaint are

described thus:

(a) "An unregistered deed of agreement

purporting to have been executed by

the late Sri Nalini Ranjan Sarkar

as Governing Director of N. R.

Sarkar & Company Limited on 19th

January 1948, (while he was on

leave as stated above) appointing

accused No. 1 (P. N. Taluqdar) as

the Managing Director of N. R.

Sarkar & Company Limited on a

remuneration of Rs. 1,500-100-

2,000/- per month and the deed

bears the signature of accused No.

2 (S. N. Basu) as the sole

attesting witness.

(b) A transfer deed in respect of 1000

shares of N. R. Sarkar & Co. Ltd.,

which has been entrusted to accused

No. 1 as stated before,

transferring them to accused No. 1

for an alleged consideration of Rs.

1,00,000(Rupees One Lakh) also

purporting to have been executed by

the late Sri Nalini Ranjan Sarkar

on 5th February, 1951, with accused

No. 2 as attesting witness both for

the transferor and transferee.

344

(c) Minutes of the proceedings of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 46

Board. Meetings of the said N. R.

Sarkar & Company Limited including

those of a meeting dated 16th

January, 1948, purporting to bear

the signature of the aforesaid late

Sri Nalini Ranjan Sarkar."

These documents, it is alleged, are forged

and have been used and by the use of these forged

documents a fraud has been perpetrated. On April

3, 1959, respondent filed in the Court of the

Chief Presidency Magistrate, Calcutta, a complaint

under sections 467, 471 read with s. 109 of the

Indian Panel Code against the two appellants, Dr.

N. N. Law and A. Chakravarti. Document No. (b)

above is not the subject matter of the complaint

because a suit in regard to it has been filed and

is pending in the Calcutta High Court. On May 7,

1959, process was issued against the appellants by

the Chief Presidency Magistrate. Before dealing

with the allegations in this complaint it is

necessary to give some further facts of the case.

On December 12, 1953 Pramode Rajan Sarkar

laid an information with the Commissioner of

Police, Calcutta, against the persons against whom

the above mentioned complaint was later filed. It

appears that the matter was investigated by the

police and by a letter dated February 16, 1954,

the Police Commissioner expressed the opinion that

there was no substance in the allegations which

were being made by Pramode Ranjan Sarkar against

the appellants and two others. He stated "....I

have given this matter very careful consideration

gone through various reports and papers and even

examined an important witness myself. My

examination has led me to conclusion that

allegations are false and vexations." On March 17,

1954, Pramode Ranjan Sarkar filed a complaint

under ss. 467, 471 and ss.457, 471 read with s.

109. After setting out the facts which have

345

been given above and after referring to the three

documents which were alleged to have been forged

it was stated that the deed of agreement was

engrossed on a stamp paper purchased in the name

of P.D. Himmatsinghka & Co., a firm of solicitors,

instead of in the name of the parties; that the

resolution of January 16, 1948, which purported to

bear the signature of the deceased was in fact not

signed by him; that during the lifetime of Nalini

Ranjan Sarkar and after a considerable period

after his death the appellant, P. N. Taluqdar,

never alleged that he had been appointed the

Managing Director of N. R. Sarkar & Co. Ltd., nor

did even appear from any resolution of the Board

of N. R. Sarkar & Co., that he was appointed the

Managing Director until September, 1953. Certain

other allegations which need not be set out at

this stage were also made in this complaint for

the purpose of showing that the appellants had

been guilty of forgery and for using forged

documents and for conspiracy. The matter was heard

by the Chief Presidency Magistrate Mr. N. C.

Chakraborty who after examining all the witnesses

who were produced before him dismissed the

complaint by an order dated August 6, 1954. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 46

learned Chief Presidency Magistrate examined the

handwriting expert and after taking all the facts

into consideration he held:

"that the evidence on handwriting

including the opinion of the Handwriting

Expert does not support the complainant's

version."

Against this order the complainant Pramode

Ranjan Sarkar took a revision to the Calcutta High

Court which was heard by Debabrata Mookerjee, J.

Before him three contentions were raised (1) that

the Chief Presidency Magistrate erred in examining

the witnesses himself after he had received the

result of the enquiry held by Mr. A. B. Shyam,

346

another Magistrate, under s. 202, Code of Criminal

Procedure; (2) the learned Magistrate

misunderstood the scope of ss. 202 and 203 and

misdirected himself by insisting upon a standard

of proof which the law did not require at the

initial stage when the only question was whether

the process should issue or not and the third

contention related to the power of revision of

High Court under s. 439 when dealing with orders

of a Chief Presidency Magistrate. The learned

Judge held against the complainant, Pramode Ranjan

Sarkar on the points that were raised before him.

He held that it was open to the Chief Presidency

Magistrate to examine witnesses; (2) the learned

Magistrate had not misdirected himself in regard

to the scope of ss. 202 and 203 and that he could

dismiss the complaint if in his judgment there was

no sufficient ground for proceeding. He also held

that the order of Magistrate was liable to be

interfered with if it was made in disregard of the

rules of procedure or it was so grossly improper

or so palpably incorrect as to require a revision

in the interest of justice. The learned judge then

examined the evidence which had been produced

before the Magistrate and taking the various

circumstances into consideration discharged the

rule and dismissed the revision, holding that the

complainant Pramode Ranjan Sarkar was guilty of

undue delay in taking action against the

appellants, because he came to know on October 13,

1953, as to the forged nature of the documents and

did not take any action till he wrote to the

Police Commissioner to which he got reply on

February 16, 1954, and he did not file any

complaint or take any action till march 17, 1954,

and this delay was unexplained. He also held that

the complainant Pramode Ranjan Sarkar's belief in

regard to forgery was not established by the

evidence which had been produced because (1) he

came to know about the agreement complained of in

February, 1953, but he discredited it and did

347

not take any action; (2) that when the agreement

came up for renewal on September 22, 1953, for

another term of the 7 years he did not oppose it

on the ground that it was a forgery but on legal

grounds. The learned judge did not believe the

evidence of Pramode Ranjan Sarkar that up to

February, 1954, he considered it absurd that there

could be such a document. He referred to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 46

correspondence which passed between the

complainant and the appellant P. N. Taluqdar. He

also considered the evidence relating to the

watermark and the circumstances in support of the

allegation of the theory of forgery and not being

satisfied with the evidence he dismissed the

revision petition and thus the order of the Chief

Presidency Magistrate Mr. Chakraborti was upheld.

It may be pointed out that on behalf of

complainant Pramode Ranjan Sarkar an application

was made on June 6, 1955, drawing the attention of

the Court to the fact that on the sheet of a paper

on which the minutes of the meeting held on

January 16, 1948, had been typed there was printed

Telephone "City 6091" and that Exchange had not

come into existence till December, 1948. It was

not stated when the complainant came to know of

this fact. The learned Judge did not pass any

separate order on this application and did not

take it into consideration in his judgment.

Against this order an application was made

for a certificate under Art. 134(1)(c) which was

dismissed but in that order this fact as to the

City Exchange coming into existence in December,

1948, has been taken note of. Pramode Ranjan

Sarkar then applied to this Court for Special

Leave which was granted on February 13, 1956, but

the appeal was withdrawn and was therefore

dismissed or March 2, 1959.

The present respondent Saroj Ranjan Sarkar

then brought a complaint under the same sections

348

on April 3, 1959, making the same allegations as

were made by his elder brother Pramode Ranjan

Sarkar but there is one further allegation as to

the Telephone City Exchange which did not find

place in the previous complaint, In this complaint

after referring to the facts which have been set

out above it was alleged in paragraph 5 as follows

:-

"That in order to assume complete

control over N. R. Sarkar & Co., Ltd. and the

concerns under its Managing Agency, the

accused, entered into a criminal conspiracy

with each other and others unknown, to

dishonestly and fraudulently forged a Deed of

Agreement, a Deed of Transfer and make a

false document, to wit, minute book of N. R.

Sarkar & Co. Ltd., and in pursuance thereof

dishonestly and fraudulently forged and/or

caused to be forged and used as genuine the

said documents."

The grounds for forgery were that the

unregistered deed dated January 19, 1948, was

engrossed on a stamp paper purchased in the name

of M/s. P. D. Himmatsinghka & Co; that the late N.

R. Sarkar was on leave granted by the company and

he never attended any meeting of the Board for

more than four years as long as he was a Finance

Minister; that the signature of Mr. N. R. Sarkar

on the resolution dated January 16, 1948, was

forged; that during the lifetime of N.R. Sarkar it

was never given out by the appellant P. N.

Taluqdar that he had been appointed a Managing

Director, that in none of the papers and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 46

correspondence and resolutions of the Board until

September, 1953, does it appear that the

appellant, P. N. Taluqdar, was its Managing

Director; that the appellant, P. N. Taluqdar

continued to hold his post in the Hindusthan

Cooperative Insurance Society Ltd. up to the end

of July, 1953; that the signature in the deed of

appointment was halting and appeared to be a

forgery even to the naked eyes; that the

resolution

349

for renewal for seven years was passed in spite of

the protest of Pramode Ranjan Sarkar who was a

director of N. R. Sarkar & Co. Ltd., and

inspection of the deed of appointment was not

given to Pramode Ranjan Sarkar in spite of his

demands. It was further alleged that the

resolutions of the Board of Directors were all on

loose sheets of paper, that the signature on the

resolutions were forged; that there was internal

evidence to show that the genuine minutes book had

been dishonestly changed; that the minutes of the

proceeding of the Board of Directors said to have

been held on January 16, 1948, were on a typed

sheet; that the Telephone No. "City 6091" was

printed thereon and the City Exchange was not in

existence in January, 1948, but came into

existence in December, 1948. It was prayed that

the accused named therein which included the two

appellants be proceeded against under ss. 467, 471

read with s. 109 of the Indian Penal Code. It will

be noticed therefore that all the allegations made

by Saroj Ranjan Sarkar are the same as those made

by Pramode Ranjan Sarkar except in regard to the

City Exchange Telephone Number.

This complaint was accompanied by an

affidavit not of complainant Saroj Ranjan Sarkar

but of Shanti Ranjan Sarkar, his nephew. In

paragraphs 1 to 7 of this affidavit he stated that

the facts in regard to the Calcutta City Exchange

were matters of public history as they were duly

published in the columns of "statesman" dated

December 29, 1948, and he also stated "that I am

aware of the facts and circumstances stated

above," but he did not say as to when he came to

know about the City Exchange matter. It may also

be noted that in the application which was made by

the complainant Pramode Ranjan Sarkar in the High

Court before Debabrata Mookarjee J., it was

submitted that judicial notice be taken of the new

350

telephone exchange under s. 57 but it was not

stated as to when that complainant came to know

about the new Telephone Exchange Number. That fact

has been stated in the affidavit of Shanti Ranjan

Sarkar in almost the same vague manner.

The learned Chief Presidency Magistrate, who

took cognizance of the second complaint, Mr.

Bijoyesh Mookerjee, after considering the whole

material placed before him issued process against

the appellants only. He held that there was no

delay on the part of the respondent in making the

complaint that the previous complaint and the

result thereof was no bar to the filing of the

second complaint; that the complaint was not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 46

brought with a view to blackmail the accused

including the appellants, that what the brother of

the respondent did, did not lay the respondent

open to the charge of blackmail. On the merits he

took into consideration the fact in regard to the

City Exchange of which according to the learned

Magistrate he could take judicial notice under s.

57 of the Evidence Act. He compared various

signatures of the late N. R. Sarkar and after

considering the elaborate order of his predecessor

he said :-

"I have read and re-read it and with

respect too due to one of his eminence, but

it is my misfortune that I have not been

persuaded. There are various other

considerations which point to the ineluctable

prima facie conclusion of forgery. But it is

not proper that I burden my order with all

that at this stage."

He held that he was satisfied about the truth of

the allegations and there was sufficient ground

for proceeding against the appellants under s.

204, Criminal Procedure Code and he therefore

issued process against them but did not issue any

process against Dr. N. N. Law and Amiya

Chakravarty who were accused Nos. 3 and 4.

351

Against this order a revision was taken by

the appellants to the High Court and rule was

issued against the Chief Presidency Magistrate to

show cause why his order should not be set aside.

He showed cause and the matter was heard by a

Division Bench consisting of P. B. Mukerjee and H.

K. Bose, JJ., and the matter was referred to a

larger Bench because of the importance of the

questions of law which arose in the case.

Three questions were raised before the

Special Bench, (1) whether under the appellate

side rules of the High Court it was competent for

a Division Bench consisting of two judges to refer

any matter to a larger bench for decision in a

criminal matter; (2) whether a second complaint

could be entertained on the same facts after a

previous complaint had been dismissed; and (3)

whether the complaint could be taken cognizance of

by the Magistrate in the absence of a sanction

under s. 196A of the Criminal Procedure Code. On

all these three points the finding of the Special

Bench was against the appellants. It held that the

attention of the Chief Justice having been drawn

to the fact that the case involved questions of

importance it was open to him in the exercise of

his inherent jurisdiction to refer the case to a

larger bench and therefore the reference was not

illegal. In regard to the filing of a second

complaint it held that a fresh complaint could be

entertained after the dismissal of previous

complaint under s. 203 Criminal Procedure Code

when there was manifest error or manifest

miscarriage of justice or when fresh evidence was

forthcoming. The Bench was of the opinion that the

fact in regard to the City Telephone Exchange was

a new matter and because Pramode Ranjan Sarkar was

not permitted to take a photostat copy of the

Minutes Book, it was possible that his attention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 46

was not drawn to the City Telephone Exchange which

was not in existence at the relevant time and that

there was sufficient reason for Pramode

352

Ranjan Sarkar for not mentioning the matter of

City Exchange in his complaint. It also held that

the previous Chief Presidency Magistrate Mr.

Chakraborty had altogether ignored the evidence of

a large number of witnesses who were competent to

prove the handwriting and signature of N. R.

Sarkar and he had no good reasons for not

accepting their evidence. It could not be said

therefore that there was a judicial enquiry of the

matter before the previous Chief Presidency

Magistrate; the decision was rather arbitrary and

so resulted in manifest miscarriage of justice.

The Court was of the opinion therefore that there

was no reason to differ from the finding of the

Chief Presidency Magistrate Mr. Bijoyesh Mukerjee

and that there was a prima facie case against the

appellants. The rules were therefore discharged.

It is against this judgment and that the

appellants have come in appeal to this court by

Special Leave.

Four appeals were filed by the two

appellants, two against the order of the High

Court of Calcutta dismissing the revision petition

and two against the order of the High Court

refusing a certificate under Art. 134 (1) (c) of

the Constitution. As this Court granted special

leave against the order of the High Court

dismissing the Revision Petition the two appeals

against the order refusing a certificate under

Art. 134 (1) (c) became infructuous and therefore

were not pressed. It is only the appeals against

the judgment and order of the High Court refusing

to quash the order of the learned Chief Presidency

Magistrate, Mr. Bijoyesh Mukerjee, which survive

for decision.

The first question to be decided and that is

the most vital question in the case is, whether

the second complaint filed by Saroj Ranjan Sarkar

respondent should have been entertained ? This

complaint was brought on April 3, 1959, the appeal

in this Court brought by Pramode Ranjan Sarkar

353

the complainant in the previous complaint, having

been withdrawn on March 2, 1959. The respondent

holds no shares in N. R. Sarkar & Co. Ltd. He is a

beneficiary under the deed of trust in trust in

regard to certain number of shares. In regard to

the unregistered deed of agreement appointing P.

N. Taluqdar as Managing Director of N.R. Sarkar &

Co. Ltd., he can have no interest. As regards the

transfer deed of 1,000 shares of N. R. Sarkar &

Co. Ltd., which it is claimed were entrusted to P.

N. Taluqdar appellant for the benefit of the

respondent and his brothers, a separate suit has

been brought and is not the subject matter of the

criminal complaint. There then remains the

resolution of the Board dated January 16, 1948,

which stands on the same footing as the

appointment to Managing Directorship and is

connected with that matter and relates to it.

Under the Code of Criminal Procedure the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 46

subject of "Complaints to Magistrates" is dealt

with in Chapter XVI of the Code of Criminal

Procedure. The provisions relevant for the purpose

of this case are ss.200, 202 and 203. Section 200

deals with examination of complainants and ss.

202, 203 and 204 with the powers of the Magistrate

in regard to the dismissal of complaint or the

issuing of process. The scope and extent of ss.

202 and 203 were laid down in Vadilal Panchal v.

Dattatraya Dulaji Chadigaonker(1). The scope of

enquiry under s. 202 is limited to finding out the

truth or otherwise of the complaint in order to

determine whether process should issue or not and

s. 203 lays down what materials are to be

considered for the purpose. Under s. 103 Criminal

Procedure Code the judgment which Magistrate has

to form must be based on the statements of the

complainant and of his witnesses and the result of

the investigation or enquiry if any. He must apply

his mind to materials and from his judgment

whether or

354

not there is sufficient ground for proceeding.

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 him 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(1), Ram Narain Chaubey v. Panachand Jain(2),

Hansabai v. Ananda(3), Doraisami v. Subramania

(4). In regard to the adducing of new facts for

the bringing of a fresh 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 and adopted the

opinion of Macleam, C. J. in Queen Empress v.

Dolegobinda Das (5) affirmed by a full Bench in

Dwarka Nath Mandal v. Benimadhab Banerji (6). 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.

The Chief Presidency Magistrate in the

complaint filed by respondent, held that the

second complaint was not unduly delayed; that s.

203 is not a bar to the second complaint and that

the

355

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 46

complaint was not with a view to blackmail the

persons accused. On the merits he held that the

minutes of the proceedings of January 16, 1948

were typed on a sheet of paper with Telephone No.

"City 6091" and the City Exchange case into

existence later in the year and that on his

comparing the signatures of N. R. Sarkar it

appeared that the signature was a forgery. He

said:

"And governing myself by this test, I

held that forgery is there prima facie and

only prima facie."

These then were to facts on which the learned

Presidency Magistrate Mr. B. Mukherjee came to a

conclusion different from that of his predecessor

Mr. Chakravorti, who had inquired into the

complaint of Pramode Ranjan Sarkar, as to the

forged nature of the signatures of Mr. N. R.

Sarkar.

Taking first the question of fresh evidence,

the view of some of the High Courts that it should

be such that it could not with reasonable

diligence have been adduced is, in our opinion, a

correct view of the law. It cannot be the law that

the complainant may first place before the

Magistrate some of the facts and evidence in his

possession and if he fails he can then adduce some

more evidence and so on. That in our opinion, is

not a correct view of the law.

The next point to be considered is, was the

mention of the telephone number "City 6091" on the

note paper on which the resolution was typed a

matter of which the previous complainant Pramode

Ranjan Sarkar was unaware and was it a fact which

with reasonable diligence he could not place

before the Magistrate. In the complaint filed by

Pramode Ranjan Sarkar no reference was made to the

City Exchange. It is true that the question was

sought to be raised as a fresh piece of evidence

before Debabrata Mookerjee, J. and it was not

356

considered by him but it was not stated before him

when the then complainant came to know of this

fact. According to a copy of the Day Book entry by

Mr. Bimal Chandra Chakravarty, Solicitor for the

previous complainant Pramode Ranjan Sarkar, dated

October 13, 1953, photostat copies were taken of

the share transfer deed and portions of the

agreement dated January 19, 1948 and inspection of

the Minutes Book was also taken but the request of

the complainant to take photostat copies of

certain resolutions was refused, by the appellant

S. M. Basu. It is significant that according to

this entry, Santi Ranjan Sarkar was acting as the

agent of Pramode Ranjan Sarkar and was present at

the time of the inspection. After this inspection

was taken, Pramode Ranjan Sarkar discussed with

his Legal Advisers the peculiarities noted in the

impugned documents. This is what he (Pramode

Ranjan Sarkar) stated as a witness before the

Chief Presidency Magistrate. His evidence also

shows that he inspected the Minutes Book though

after much "recriminations." Witness Shibakali

Bagchi stated that Minutes Book of N. R. Sarkar &

Co. Ltd., was examined by him and that it appeared

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 46

to him that the book was not genuine and Pramode

Ranjan Sarkar complained that some of the

signatures were forged. It appears from the

statement of Pramode Ranjan Sarkar that the

appellant S. N. Basu, did not let them take

photographs of some of the pages of the Minutes

Book. It is not stated by either Bagchi or Pramode

Ranjan Sarkar of what documents they wanted to

take photographs which were refused. In the

statement of Bimal Chandra Chakrabarty, the

Solicitor, the same statement is made i. e, they

wanted to take photographs of some documents which

were not allowed to be taken. The correspondence

produced by Pramode Ranjan Sarkar in his complaint

proceedings shows that the Minutes Book was

produced for his inspection and was inspected.

Debabrata Mookarjee, J., in dealing with the

357

resolution of January 16, 1948, said that it was

not possible on the materials available considered

prima facie that the Magistrate's finding suffered

from such a grave impropriety as to require

interference by the Court. He was of the opinion

that the complainant could not have been unaware

of the resolution of January 16, 1948. This he

concluded from the following; that on his own case

Pramode Ranjan managed the affairs of the Company

along with the appellant P. N. Taluqdar; that

although the proceedings of the Board dated

September 22, 1953, referred to the resolution of

January 16, 1948 yet the only protest made against

it by Pramode Ranjan Sarkar was the alleged legal

difficulties consequent on renewal of the

appointment but its genuineness was not then

questioned and it was questioned for the first

time on March 17, 1954, when the complaint was

lodged.

Against the judgment and order of Debabrata

Mookerjee J., Special Leave to appeal to this

Court was obtained and one of the points taken in

the application was that the resolution was typed

on a sheet of paper bearing Telephone No. City

6091 although this Telephone Exchange did not come

into existence till December 28, 1948. It is

significant that Pramode Ranjan Sarkar did not

mention when he came to know about the existence

of this new fact. It was not, therefore, made

clear to the learned Judge at least upto that

stage as to when, before or after the filing of

the first complaint Pramode Ranjan Sarkar came to

know about the existence of this piece of evidence

to which so much importance is attached. Debabrata

Mookerjee, J., also said in his judgment that the

affairs of the Company were managed by Pramode

Ranjan Sarkar and the appellant P. N. Taluqdar and

that it was difficult to believe that he (Pramode

Ranjan) had no access to the Minutes Book which

showed that he himself

358

had presided over several meetings and also that

there was nothing extraordinary about the

proceedings being typed on separate sheets of

paper and the sheets of paper being pasted in that

Minutes Book because on some of them there were

his own signatures and it was, difficult to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 46

believe that tampering with the records went on

"systematically" for several months without

Pramode Ranjan Sarkar having seen the book or

detected the tampering. It was, therefore,

impossible to blame the previous Chief Presidency

Magistrate if he held in those circumstances that

there was no forgery in the Minutes Book or

tampering with it. The following passage from the

learned Judge's judgment is significant:-

"Photographs of the impugned documents

were taken on the 13th October when the

Minutes Book was inspected. On the last

mentioned date the complainant was certain

about the entire book having been tampered

with; but nothing appears to have been said

about it, no challenge made, no protest

entered until full five months passed when at

last the silence was broken and the complaint

was lodged on the 17th March, 1954. It is of

course not known what was said about it in

the information to the police. These

circumstances are explicit in the

complainant's case. That case has only to be

presented for these features to be seen, and

the Magistrate could not possible have

overlooked them. His clear finding is that

the Minute Book is genuine. I am not in a

position to say it is improper on a prima

facie consideration of the evidence offered."

Dealing with the question whether the

signatures of N. R. Sarkar were forged, the

learned Judge agreed after considering the whole

evidence that the signatures were not forged.

359

The complaint of the present complaint Saroj

Rajan Sarkar specifically mention the City

Exchange and that it came into existence later. He

also alleges that this fact was not known to the

previous complaint, Pramode Ranjan Sarkar, and in

support there is the affidavit of Santi Ranjan

Sarkar. Significantly enough in that affidavit

also it is not stated as to when the deponent came

to know about this alleged new fact of the

Telephone City Exchange. All that the affidavit

says is that it is a matter of history and was

published in the Statesman of December 29, 1948.

There is no evidence on the record to show as to

when the matter of "City Exchange" came to be

known to the persons who were then and two those

who are now prosecuting the criminal complaints.

The document which we have referred to above i.e.,

the letter written by the Solicitor dated October

13, 1953 shows that Santi Ranjan Sarkar was

present as agent of Pramode Ranjan Sarkar at the

time of the inspection. The complaint filed by

Saroj Ranjan Sarkar states:-

"That with great difficulty the

documents in question were inspected,

certified true copies of the alleged

resolutions of the Board meetings were

obtained and photostatic copies of material

portions including alleged signatures of late

Sri Sarkar on the said Deed of Agreement and

on the Deed of Transfer could be obtained, as

will appear from correspondence in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 46

respect."

In the complaint filed by Pramode Ranjan

Sarkar exactly the same language was used in

paragraph 10 of the previous complaint. If

certified copies were obtained by the complainant

Pramode Ranjan Sarkar and inspection was taken by

Santi Ranjan Sarkar for Pramode Ranjan Sarkar and

by his Solicitor and the facts are as they are

360

stated above, it is difficult to hold that the

fact in regard to the City Exchange was not know

to the complainant in the first complaint and was

a new fact which could not, with reasonable

diligence, be adduced by him.

The next question which arises is whether the

order of the previous Chief Presidency Magistrate

who decided Pramode Ranjan's complaint, was

manifestly absurd or unjust and resulted in a

manifestly unjust order. The Special Bench of the

High Court has held that it was so because (1) the

Magistrate ignored the evidence of a large number

of witnesses who were competent to prove the

handwriting and signature of the late Mr. N. R.

Sarkar; (2) he "set aside" the report of the

enquiring Magistrate, Mr. A.B. Syam for reasons

which cannot be held to be proper and judicial

reasons; (3) He said in his order that Mr. N. R.

Sarkar might himself have ante-dated the documents

thus accepting a possible defence for which there

was no basis before him; and (4) he relied upon

his own comparison of the disputed signatures of

Mr. N. R. Sarkar. On these grounds the Special

Bench was of the opinion that the decision of the

first Magistrate was rather arbitrary and so

resulted in manifest miscarriage of justice. The

question is whether Mr. N. C. Chakrabarti, the

previous Presidency Magistrate had applied his

mind to the evidence which was produced before him

and keeping in view his functions as a Magistrate,

he gave his decision. It is not necessary to refer

to the various findings given by him. Thy are set

out and considered in the judgment of Debabrata

Mookerjee, J. and he (that learned Judge) has

commented upon all the infirmities in that order

which were brought to his notice.

The previous Chief Presidency Magistrate

found that the Deed of Agreement dated January 19,

1948 was not a forged document. He referred

361

to the evidence without analyzing it. He said that

the complainant examined persons who know the

signature of the late Nalini Ranjan Sarkar and

they deposed as to the manner in which Nalini

Ranjan Sarkar used to sign. After making a

reference to the gist of the evidence submitted

before him and to the report of Mr. A. B. Syam,

Presidency Magistrate, he (the learned Chief

Presidency Magistrate) came to the conclusion:

"For the reasons above, I find that the

evidence on handwriting including the opinion

of the Handwriting Expert does not support

the complainant's version."

Again in a later part of his order he found

that the resolution of the Board of Directors

dated January 16, 1948 also was not forged and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 46

that the endorsement of the appellant S. M. Basu,

was nothing more or less then the authentication

of the common seal of the Co., and he, therefore,

agreed with the finding of Mr. A.B. Syam that

there was no case against S. M. Basu, appellant

but disagreed with him in regard to the other

appellant, P. N. Talukdar. When the matter went to

the High Court, Debabrata Mookerjee, J., first

considered as to when the revisional power of

Court to interfere should be exercised. Then he

discussed the seven circumstances which were

relied upon by the then complainant Promode Ranjan

Sarkar in support of the allegations of forgery.

After dealing with these various points raised he

held:-

"It may be that one or two items of

evidence were not specifically referred to in

the Order but that does not necessarily imply

that those items of evidence were not present

to the mind of the Magistrate. After all a

Magistrate is only required to record briefly

his reasons for dismissing

362

a complaint. The Magistrate's order, I think,

is fairly well."

The learned Judge then discussed the question

of delay and held that Pramode Ranjan Sarkar had

considerably delayed the bringing of the

complaint. He also held that the Deed of Agreement

which was alleged to be a forgery had not been so

proved and he gave various reasons, one of them

being that at the meeting of the Board of

Directors dated September 22, 1953, the then

complainant did not oppose the renewal on the

ground that the Agreement was forged or did not

exist, but on legal grounds. Then the learned

Judge referred to the correspondence which had

passed between the then complainant Pramode Ranjan

Sarkar and the appellant P.N. Talukdar and said:

"It is therefore clear that the evidence

which the complainant offered in support of

his case contained prima facie on the first

aspect sufficient materials for distrusting

the truth of the story and I cannot see how

the Magistrate's order can be challenged in

revision on the ground of impropriety as

respects the Deed of Agreement.

The learned Judge then referred to other aspects

of the case i.e., the evidence of the Deputy

Controller of Stationery, P.W. 15. He also

referred to finding of the previous Chief

Presidency Magistrate that it was difficult to

believe that the complainant should have been

unaware of the resolution of January 16, 1948 and

after referring to all these various questions

raised, he dismissed the petition.

Can it be said in these circumstances that

there has been a manifest error resulting in the

passing of an unjust order ? That in our opinion,

has not been made out. The order of Debabrata

Mookerjee J., who reviewed the findings of the

previous Chief Presidency Magistrate, shows that

the criticism that that the learned Magistrate did

not

363

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 46

consider the whole evidence is not justified.

Taking the evidence into consideration he came to

the conclusion that there was no ground to proceed

and, therefore, refused to issue process. In his

opinion the evidence was not worthy of credit and

he was not satisfied with the correctness of the

complaint and dismissed it as he was entitled to

do on those findings. See Gulab Khan v. Gulam

Mohammad Khan (1) which was approved in Vadilal

Panchal v Dattatraya Dulaji Chadigaonker(2). In

the circumstances the order made by the previous

Chief Presidency Magistrate was not any manner

manifestly absurd unjust or foolish, nor can it be

said that the Magistrate ignored in any principles

which were necessary to apply under ss. 202 and

203 of the Criminal Procedure Code nor is the

order contrary to what was said in Ramgopal

Ganpatrai Ruia v. State of Bombay (3). That was a

case in which the rule in regard to the commitment

proceedings and the power of the Committing

Magistrate to commit was discused and the

expression "sufficient grounds" in ss. 209, 210

and 213 of the Code of Criminal Procedure was

interpreted. That was not a case dealing with the

powers of the Magistrate under ss. 202 and 203

which was specifically raised and decided in

Vadilal Panchal's case (3). In Ramgopal Ganpatrai

Ruia's case (3) the following observations of

Sinha J., (as he then was) in regard to the

expression "sufficient grounds" are pertinent:

"The controversy has centred round

interpretation of the words "sufficient

ground", occurring in the relevant

sections of the Code, set out above. In

the earliest case of Lachman v. Juala

(1882) I.L.R 5 All. 161, decided by Mr.

Justice Mahmood in the Allahabad High

Court, governed by s. 195 of the

Criminal Procedure Code of

364

1872 (Act No. X of 1872), the eminent

judge took the view that the expression

"sufficient grounds" has to be

understood in a wide sense including the

power of the magistrate to weigh

evidence. In that view of the matter, he

ruled that if in the opinion of the

magistrate, the evidence against the

accused "cannot possibly justify a

conviction" there was nothing in the

Code to prevent the Magistrate from

discharging the accused even though the

evidence consisted of statements of

witnesses. who claimed to be eye-

witnesses, but whom the magistrate

entirely discredited. He also held that

the High Court could interfere only if

it came to the conclusion that the

Magistrate had committed a material

error in discharging the accused or had

illegally or improperly underrated the

value of the evidence. Thus, he

overruled the contention raised on

behalf of the prosecution that the

powers of the committing Magistrate did

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 46

not extent to weighing the evidence and

that the expression "sufficient ground"

did not include the power of

discrediting eye-witnesses. Though the

Code of Criminal Procedure was several

times substantially amended after the

date of that decision, the basic words

"sufficient grounds" have continued

throughout. That decision was approved

by a Division Bench of the Bombay High

Court In re Bai Parvati (1910) I.L.R 35

Bom. 163 and the observations aforesaid

in the Allahabad decision were held to

be an accurate statement of the law as

contained in s. 201 of the Code, as it

now stands. The High Court of Bombay

held in that case where the evidence

tendered for the prosecution is

365

totally unworthy of credit, it is the

duty of the Magistrate to discharge the

accused. It also added that where the

magistrate entertains any doubt as to

the weight or quality of the evidence,

he should commit the case to the Court

of Session which is the proper authority

to resolve that doubt and to assess the

value of that evidence."

Debabrata Mookerjee J., in the revision

against the order of the previous Chief Presidency

Magistrate accepted the finding of that Magistrate

in regard to the delay. The present complaint out

of which this appeal has arisen was filed after

the appeal in this Court arising out of this

complaint was withdrawn by Pramode Ranjan Sarkar.

Can it be said that this is not an abuse of the

process of tho Court-one brother who was a

director of the Company and who would be

interested in the Managing Directorship of the

Company and the resolutions passed in regard to

that office, brought a complaint in 1954 which was

dismissed both by the Magistrate and the High

court. Appeal against the order of dismissal

brought in this court was withdrawn on March 12,

1959. It was alleged in his complaint by Pramode

Ranjan Sarkar that the present respondent was

celluding with appellant, P. N. Talukdar, who had

offered his some kind of monetary inducement and

that fact was deposed to by the present respondent

himself as a witness in the previous complaint. He

waited all this time although he knew about the

forged signatures of his late brother on various

documents and after at least the lapse of five

years he brought a fresh complaint on the same

facts. Neither he has disclosed as to when he came

to know about the City Exchange nor have Santi

Ranjan Sarkar and Pramode Ranjan Sarkar, which

cannot therefore be said to be a fact which could

not with reasonable diligence be adduced at the

time of the previous complaint.

366

The argument that this Court gave Special Leave in

the case of Pramode Ranjan Sarkar and therefore

there were points of importance is, in the

circumstances of this case, a neutral circumstance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 46

and that fact cannot be used as a point in favour

of the respondent.

In these circumstances, we are of the opinion

that the bringing of the fresh complaint is a

gross abuse of the process of the Court and is not

with the object of furthering the interests of

justice.

In regard to the power of reference to a

larger Bench, we are in agreement with S. K. Das,

J, and in the circumstances it is unnecessary to

express an opinion as to the applicability of s.

196A Criminal Procedure code to the facts of this

case.

For these reasons we allow the appeals, set

aside the order of the High Court and of the

learned Chief Presidency Magistrate and dismiss

the complaint.

BY COURT: In accordance with the judgment of

the majority, the appeal is allowed.

Appeal allowed.