Bombay High Court
Shri Rafique Abdul Malik Malik Malik And ... vs Shri Bipin Z/O Revandas Patel, Kabdul ... on 18 July, 2003
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. A small point arises for adjudication and that is, what is the effect of the act of Court in not taking cognizance of a complaint presented before it in respect of some accused mentioned in the said complaint against whom Court does not pass the order of issuing process, qua the offences indicated in the complaint.
2. A complaint was filed by respondent No. 1 against the present petitioners and some other persons in a Criminal Court, which was numbered as Criminal Case No. 108/1990. On 5th of June 1990 the process was issued against original accused No. 1 and 2 mentioned in the complaint and the complaint was dismissed against present petitioners. Thereafter on 5th of July, 2000 the said complaint was dismissed for default as complainant and his officers were absent. The said complainant, present respondent No. 1, filed another complaint, which was numbered as Criminal Complaint No. 193/2001. In the matter of this complaint the learned Magistrate directed the concerned police station to investigate into the allegations made in the said complaint in view of provisions of Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience) and that order has been put to challenge.
3. Shri Deshpande submitted that though the process was issued against other accused in view of offence indicated by provisions of Section 420 r/w Section 34 of Indian Penal Code, the present petitioners will have to be treated to have been acquitted in respect of the said complaint and therefore, they cannot be now against tried on the same allegations for the same offences in view of provisions of Section 300 of Code and Article 20 of Constitution of India. He submitted that the said order directing concerned police station to make investigation in the present case in view of provisions of Section 156(3,4) needs to be quashed.
4. Shri Saste submitted that in view of Section 300 of the Code and Article 20 of Constitution of India the said order will have to be quashed.
5. Section 200 of the Code provides:
"Sub-section (1) - A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
Sub-section (2) provides:
"A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.
Sub-section (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
Sub-section (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
Sub-section (5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first mentioned Court is subordinate.
Sub-section (6) Nothing in this section shall after the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code.
Explanation.-
The dismissal of a complaint, or the discharge of the accused, is not an acquittal for this section."
6. Shri Deshpande placed reliance on the judgment of Supreme Court in the matter of L. Pramatha Nath Talukdar (in Cr.A. No. 75 of 1961) and 2. Surendra Mohan Basu (In Cr.A. No. 77 of 1961) v. Saroj Ranjan Sarkar (in both appeals), reported in 1962 (1) Cri. L.J. 770, wherein the Supreme Court held (per majority) that:
"when the first complaint is dismissed second complaint cannot be entertained with respect to question of fresh evidence on which the second complaint on the same facts may be entertained when the first complaint is dismissed the view taken by some High Courts and such evidence should be such a nature that it could not be with reasonable diligence have been adduced is a correct view of 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 adduce some more evidence and so on. That is not correct view of the law.
In the same judgment the Supreme Court held (per majority) that:
"Where a complaint is filed and the Magistrate in a enquiry held under Section 202, takes the evidence offered by the complainant into consideration and comes to the conclusion that there is no ground to proceed, that the evidence is not worthy of credit and that he is not satisfied with the correctness of the complaint, he is entitled to refuse the issue of process and dismiss the complaint under Section 203. In such a circumstance the order of dismissal made by the Magistrate cannot be said to be in any manner manifestly absurd, unjust or foolish, nor can it be said that the Magistrate ignored any principles which are necessary to apply under Sections 202 and 203 of the Criminal Procedure Code nor that there are no sufficient grounds for doing so.
Supreme Court further pointed out that:
Keeping in view the facts and circumstances of the case that the bringing of the fresh complaint was gross abuse of the process of the Court and was not with the object if furthering the interest of justice."
7. Article 20 of Constitution of India provides:
"Sub-Article (1).- No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Sub-Article (2) No person shall be prosecuted and punished for the same offence more than once."
8. Therefore, keeping in view the provisions of Section 300, the observations made by the Supreme Court in Pramatha's case (Supra) and provisions of Sub-Article (2) of Article 20, when a Magistrate is taking cognizance of a complaint which he dismissed, he has to pass a speaking order and has to pinpoint the circumstances compelling his to take cognizance of second complaint, if that complaint happens to be connected with the offence for which the summons procedure has been indicted by the relevant provisions of Code. In cases of offences for which the summons procedure has been indicated by relevant provisions of Code, said order would amount to an acquittal. If that happens to be revolving around the offences for which the warrant procedure has been indicated by relevant provisions of Code then that order will amount to discharge. A Court would be entitled to entertain a fresh complaint in case the accused have been discharged in previous case and fresh complaint happens to be revolving around the offence for which the warrant procedure has been indicated.
9. But once the situation comes to the point of acquittal, the Court is barred from taking cognizance of the complaint indicating such an accused for the same offence on the same allegations, of course there would be exception as indicated by provisions of Section 300 but the order on which the Magistrate takes cognizance of fresh complaint should indicate clearly that way.
10. In a case where a Magistrate does not take cognizance at all of the complaint and does not decide to issue the process against some accused but issues process against some accused, then keeping in view the provisions of Section 300 of the Code and Article 20 Sub-Article (2) the Magistrate would be precluded from taking cognizance of fresh complaint on the same allegations for the same offence. On account of doctrine of autrefois acquit on the point of double jeopardy.
11. In the present case, when the learned Magistrate did not think of taking cognizance against the present petitioners when the first complaint was filed, impliedly he had acquitted them of the allegations embodied in the said complaint. Issuance of process against the remaining accused for offence for which warrant procedure has been indicated would have no relevance with the present petitioners, who happened to be the accused against whom the learned Magistrate did not think of taking cognizance of the said complaint and did not think of issuing process.
12. When he gave a direction to the officer in-charge of the concerned Police station to make enquiry in view of provisions of Section 156(3) of the Code, the learned Magistrate should have passed speaking order and should have made out a case touching provisions of Sub-section (2, 3, 4, 5, 6 and explanation) embodied in Section 300 of the Code. So far as the present case is concerned, there was nothing to that effect.
13. Therefore, the order which has been passed by the learned Magistrate directing the in-charge of concerned Police Station to make enquiry against the present petitioners in view of provisions of Section 156(3) of the Code will have to be quashed as barred by law. Thus, this petition succeeds and the order which has been assailed stands quashed. The Officer in-charge of concerned Police Station should not summon the present petitioners for enquiry in view of the said order of the Magistrate. He should only call other accused.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.