Himachal Pradesh High Court
Reserved On: 12.03.2025 vs Kavita Chaudhary on 21 March, 2025
2025:HHC:6952
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 111 of 2018
Reserved on: 12.03.2025
Date of Decision: 21.03.2025.
Harpreet Singh and others ...Petitioners
Versus
Kavita Chaudhary ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioners : Mr. Y.P. Sood, Advocate.
For the Respondent : Mr. Manoj Pathak, Advocate, for
respondent No.1.
Respondents No.2 and 3 proceeded
ex-parte.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing of proceedings pending before learned Judicial
Magistrate First Class-IV, Shimla, in a case titled Kavita
Chaudhary Vs. Harpreet Singh. (The parties shall hereinafter be
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present
petition are that the complainant made a complaint to Hon'ble
the Chief Justice of this Court asserting that she is a resident of
Dimple Cottage, Chotta Shimla-2, H.P. Her husband had taken
Dimple Cottage on lease through Lease Deed dated 24.5.2010.
Physical possession of the Cottage was handed over to her
husband on 1.6.2010. Gurpreet Singh is the Special Power of
Attorney of Harpreet Singh. He was dealing with the property on
behalf of Harpreet Singh. The complainant's husband remained
in possession since 24.5.2010. He carried out the necessary
repairs in the building. Gurpreet Singh and Harpreet Singh
started interfering with the enjoyment of the property. The
complainant's husband filed a civil suit, which was
compromised on 26.3.2011. The defendant undertook not to
interfere in the possession of the complainant and her husband.
Harpreet Singh and Gur Parveen Kaur trespassed in the
accommodation on 21.4.2011. The complainant visited Shimla on
24.4.2011, and she was informed by Gurinder Singh Maan about
the trespass. She noticed that the locks and doors of the
premises were broken. This fact was also confirmed by Gurpreet
Singh Maan. The complainant found that her goods were
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disturbed, and some of the articles were stolen. She reported the
matter at the Police Station, Chhotta Shimla, however, Shyam
Sunder, Additional SHO, refused to enter the information.
Shyam Sunder visited the premises of the complainant on
24.4.2011 along with some constable. He tried to place some
suspicious articles on the premises. The complainant objected to
it. Shyam Sunder abused and threatened her. This incident
occurred at 8.30 PM. Sarwan Singh, SHO and Shyam Sunder,
Additional SHO, came to the premises at about 10.30 PM. Sarwan
Singh used rough and unparliamentary language against the
complainant. Harpreet Singh had a blanket. The complainant
objected. It was found that Harpreet Singh had a rifle which was
concealed in the blanket. The police seized the rifle. Gur Parveen
Kaur visited the premises on 25.4.2011 and told the complainant
to leave the premises. The complainant asserted that no action
was being taken in the complaints filed by her. Hence, it was
prayed that an action be taken and protection be provided to her.
3. This complaint was sent by Hon'ble the Chief Justice
to the Secretary, District Legal Services Authority, Shimla, H.P.,
who forwarded it to learned Judicial Magistrate First Class-VI,
Shimla. Learned Judicial Magistrate First Class-VI, Shimla
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recorded preliminary evidence and ordered the issuance of
summons vide order dated 4.7.2011.
4. Being aggrieved, the petitioners Harpreet Singh and
Gur Parveen Kaur approached this Court. This Court vide
Cr.MMO No. 53 of 2012, decided on 18.9.2012, titled Harpreet
Singh and others Vs. Kavita Chaudhary quashed the order dated
4.7.2011. The matter was carried to the Hon'ble Supreme Court.
The Hon'ble Supreme Court passed the following order:-
"We are not inclined to interfere with the impugned order
passed by the High Court under section 482, Cr.P.C.
quashing cognizance taken against the respondents on
the ground that the order was passed by the Magistrate
without application of judicial mind. However, it will be
open for the Magistrate to apply judicial mind to
whatever materials placed before him and pass
appropriate orders on the question of cognizance.
The special leave petition is dismissed with the above
observations."
5. Learned Judicial Magistrate First Class-IV held that
ASI Shyam Sunder, Harpreet Singh, SHO Swaran Singh and Kalu
had forcibly entered the house of the complainant. They abused
her. Hence, a prima facie case was made out for the commission
of offences punishable under Sections 452, 511, 503, 504, and
350 read with Section 34 of IPC. Learned Magistrate ordered the
issuance of the summons.
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6. Being aggrieved from the order passed by the learned
Trial Court, the petitioners have filed the present petition
seeking quashing of proceedings pending before learned Judicial
Magistrate First Class-IV. It was asserted that the initiation of
criminal proceedings against the petitioners is illegal and gross
abuse of the process of the Court. The criminal proceedings
could not have been initiated and continued against the
petitioners on the basis of the same record. There is a violation
of Section 300 of Cr.P.C, and a person cannot be vexed twice for
the same act. A List of prosecution witnesses was not filed with
the complaint, which is a mandatory provisions of law. No
prayer was made by the complainant for taking cognisance
against the petitioners under various provisions of law. The
allegations in the complaint do not constitute any prima facie
case. The complainant had lodged FIR No. 44 of 2011. The police
filed a cancellation report after investigating it. The report was
accepted by learned Judicial Magistrate First Class, Court No.1
and the present complaint is not maintainable. Hence, it was
prayed that the present petition be allowed and the FIR be
ordered to be quashed.
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7. The petition is opposed by filing a reply denying the
contents of the petition, however, the filing of the complaint
and initiation of proceedings were disputed. It was asserted that
the Hon'ble Supreme Court had directed the Magistrate to apply
judicial mind to the material placed before him and pass an
appropriate order. The learned Magistrate passed an order in
compliance with the directions issued by the Hon'ble Supreme
Court. There is no infirmity in the order. There is no violation of
any provision of Cr.P.C. Hence, it was prayed that the present
petition be dismissed.
8. I have heard Mr. Y.P. Sood, learned counsel for the
petitioners and Mr. Manoj Pathak, learned counsel for
respondent No.1.
9. Mr Y.P. Sood, learned counsel for the petitioners,
submitted that the learned Trial Court erred in issuing the
process against the petitioners. The allegations in the complaint
do not constitute the commission of cognisable offence. This
Court had already quashed the order, taking cognisance on an
earlier occasion, and it was impermissible for the learned
Magistrate to pass a fresh order. The list of witnesses was not
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filed, which is a mandatory requirement under Section 204 of
Cr.P.C. Therefore, he prayed that the present petition be allowed
and the proceedings pending before the learned Trial Court be
quashed. He relied upon the judgment of the Hon'ble Supreme
Court in Krishna Lal Chawla v. State of U.P. (2021) 5 SCC 435 in
support of his submission.
10. Mr. Manoj Pathak, learned counsel for the
respondent/complainant, submitted that the Hon'ble Supreme
Court had permitted the learned Magistrate to apply his judicial
mind and pass an appropriate order. Therefore, the learned
Magistrate was justified in passing the order. There is no
infirmity in the procedure adopted by the learned Magistrate.
The provision of Section 204 of Cr.P.C. is not mandatory.
Therefore, he prayed that the present petition be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. It is apparent from the judgment passed by the
Hon'ble Supreme Court that the Hon'ble Supreme Court was
pleased to uphold the order passed by this Court to the extent
that the learned Magistrate had not applied his mind while
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taking cognisance. The Hon'ble Supreme Court had also
provided an opportunity to the learned Magistrate to apply his
mind and to proceed further if so required. Hence, the Hon'ble
Supreme Court itself had permitted the learned Magistrate to
apply his mind, and the learned Magistrate cannot be faulted for
applying the mind and passing an order. Thus, the plea taken by
the petitioners that learned Magistrate had no jurisdiction to
pass an order is not acceptable.
13. It was submitted that the petitioners were discharged
by this Court, and continuation of proceedings is impermissible.
This submission is not acceptable. The continuation of
proceedings is as per the orders passed by the Hon'ble Supreme
Court. If they have any grievance regarding the order passed by
the Hon'ble Supreme Court, their remedy was to approach the
Hon'ble Supreme Court. They cannot raise any grievance
regarding the continuation of the proceedings when such
continuation was permitted by the Hon'ble Supreme Court.
14. It was submitted that the list of witnesses has not
been filed which is a mandatory requirement under law. This
submission is not acceptable. It was laid down by this Court in
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Kanhu Ram v. Durga Ram, 1979 SCC OnLine HP 4 that the
requirement of filing a list of witnesses is not mandatory and
the summoning order cannot be held to be bad because of its
violation. It was observed:-
"7. So far as the next contention is concerned, it is
apparent from the provisions of Section 204 of the
Criminal Procedure Code, 1973 that it provides that no
summons for warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution
witnesses has been filed. The argument was that since it
is apparent from the complaint as well as the statement
of the complainant which was subsequently recorded that
neither of them disclosed any list of witnesses, the order
issuing the process is vitiated. My attention was drawn to
the decision given by the Punjab High Court on this point
in Ram Narain v. Bishamber Nath reported in AIR 1961 Punj
171 wherein it is held that the provisions of clause (1-A)
(which was equivalent to clause (2) of Section 204 of the
Cr. P.C. 1973) are mandatory in the sense that a process
issued before the filing of the list of witnesses would be
invalid. It is further observed in that decision by Dua, J.
that provisions which enjoin the courts to satisfy themselves about the prima facie nature of a criminal charge, before issuing a process, must be intended, in the absence of a clear suggestion to the contrary, to be mandatory.
8. I find that before the Punjab High Court pronounced the above-referred decision, a single Judge of the Madhya Pradesh High Court also took a similar view with regard to clause (1-A) of Sec. 204 of the old Code as reported in Chaturbhuj v. Naharkhan, AIR 1958 Madh Pra 28. In another decision of the Gujarat High Court, a learned single Judge of that Court held in Patel Dhanji Mavji v. Gadhvi Govind Jiva, 1974 Cri LJ 241 that provisions of Section 204(1-A) are mandatory and that they were 10 2025:HHC:6952 enacted for protecting the interest of the accused. It is further observed in that case that where nothing was brought on record by the complaint to indicate that he does not want to examine any other witness and that he was the solitary witness, and if the court has not made any enquiry from the complaint on this point, the order passed regarding the issuing of process without filing any such list as required by the section could not be sustained in law.
9. As against this, a Full Bench of the Jammu and Kashmir High Court has held in Abdullah Bhat v. Ghulam Mohd. Wani reported in 1972 Cri LJ 277 that non-compliance with Section 204(1-A) is not an illegality which renders subsequent proceedings null and void but a curable irregularity. It is further observed in that decision that Section 204(1-A) which is a salutary provision is made not in the public interest but only for the protection and benefit of the accused and has to be complied with normally; however. It is not mandatory in the sense that even if no prejudice is caused to the accused it will vitiate the trial.
10. In Banarsi Das v. Berar Oil Industries reported in (1966) 2 Delhi LT 357 the Punjab High Court held that unless the failure to comply with mandatory provisions of Section 204(1-A) of the Cr. P.C. have caused some prejudice, the proceedings are not vitiated.
11. In Sunilakhya Chowdhury v. H.M. Jadwet reported in AIR 1968 Cal 266, a single Judge of the Calcutta High Court has observed that the intention of the Legislature in enacting Section 204(1-A) is quite clear, and it is, that before issuing of the summons or warrant against the accused persons, the list of witnesses should be filed because the point of time need not be when the petition or complaint is filed.
12. The Supreme Court has casually touched this point in Mowu v. The Supdt. Special Jail, Nowgong (1971) 3 SCC 936i n paragraph 16 of the reported judgment, did not 11 2025:HHC:6952 decide the point in view of the fact that the procedure prevailing in Nagaland was different.
13. It should be noted before proceeding further that Miss Kamlesh Sharma, the learned Advocate of the respondent contended that she was instructed to say that along with the complaint her client had filed a list of witnesses and had also supplied a further list of witnesses subsequently. However, no such list is found in the record of the case and, therefore, no notice of any such filing can be taken.
14. I am of the opinion that even if filing of a list contemplated by sub-section (2) of Section 204 is considered to be mandatory, the provisions contained in Section 465 of the Code have to be taken into consideration before declaring the issue of process as illegal. This Sec. 465 of the new Code is equivalent to Sec. 537 of the old Code and it provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during the trial unless in the opinion of the appellate or the revisional court a failure of justice has, in fact, been occasioned thereby. The difficulty which is relied upon by the learned Advocate of the petitioners is the difficulty amounting to an error in issuing the process. Therefore, the impugned order issuing the process cannot be set aside unless this court finds that it has resulted in a failure of justice.
15. The crucial question, therefore, is whether, even if it is believed that the order-issuing process was illegal, that order has resulted in a failure of justice. I find that the obvious answer to this question is in the negative because the matter has not yet proceeded further and the complainant can be asked to furnish a list of witnesses before evidence is recorded in the case, so that the accused, for whose protection sub-section (2) of Section 204 is enacted, can know the nature of the evidence which 12 2025:HHC:6952 the complainant is likely to produce. Moreover, the above referred proceedings which were undertaken in the case before the process was actually issued show that as regards the same incident the police have instituted a case and have filed a challan. That challan was perused by the court and it would be also open to the accused to have a reference to that challan. Under these circumstances, I find that even believing that the provisions contained in sub-section (2) of Sec. 204 Cr. P.C. are mandatory, since the matter has not proceeded further and since it is yet open to supply the necessary information to the accused as regards the names of the witnesses against him, this is not a case in which it can be said that there has been any failure of justice within the meaning of Section 465 of the Code of Criminal Procedure. In this connection, I very respectfully endorse the view taken by the Full Bench of the High Court of Jammu and Kashmir in the above referred case of Abdullah Bhat v. Ghulam Mohd. As the result this application fails and the same is dismissed. I, however, order that before recording evidence, the learned Magistrate shall compel the complainant to file a list of witnesses whom he proposes to examine and shall thereafter proceed to record evidence in the case. Orders accordingly.
15. This judgment was followed by Madras High Court in F.A. Poncha v. M. Meherjee, 1993 SCC OnLine Mad 390, wherein it was observed:-
"19. Now, we have to turn our attention to the other submission, that a list of witnesses, has not been appended to the complaint. Provisions under Sec. 204(2) Crl.P.C. will be relevant to scrutinise this contention. It reads as hereunder:
"No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed."13
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20. Sub-Section (1) deals with issue of process, be it a summon or warrant, as the case may be.
21. The object of the aforestated provision is to facilitate the accused to know the case he has to meet, which was expected to be put forth, through those witnesses listed in the complaint. This procedure, was, obviously, deemed important, for, in the case of a final report filed by the police, there would have been investigation during the couse of which statements of witnesses would have been recorded, apart from collection of documentary evidence. All material collected during investigation by the police will be forwarded along with the final report under Section 173(8) Cr.P.C. On the appearance of the accused, those documents, in law, will have to be supplied to him, before the commencement of trial. To achieve the same purpose, in a private complaint, the object of law appears to be, that a list of witnesses, whom the complainant will choose, to examine, must be appended to the complaint. If that object and purpose intended by Sec. 204 Cr.P.C. could be otherwise satisfied, without any prejudice being caused to the accused, merely because a list of witnesses had not been appended to the complaint, the pending prosecution cannot be quashed.
22. Observations of T.U. Mehta, C.J. of Himachal Pradesh High Court, in Kanhu Ram v. Durga Ram, (1980 Cri LJ 518), appear to be relevant in this context. Learned Judge stated, that even if filing of a list contemplated by sub- section (2) of Section 204 Cr.P.C. was considered to be mandatory, the provisions contained in Section 465 of the Code may have to be taken into consideration, before declaring the issue of process as illegal. Therefore, order issuing process cannot be set aside, unless the Court found, that it had resulted in failure of justice. It was further held, that the order had not resulted in failure of justice, since the matter had not yet proceeded further and the complainant could be asked to furnish a list of witnesses, before evidence was recorded in the case, so that the accused, for whose protection, sub-section (2) of 14 2025:HHC:6952 Section 204 was enacted, could know the nature of evidence, which the complainant was likely to produce.
23. A Full Bench of Jammu and Kashmir High Court in Abdulla Bhat v. Ghulam Mohd. Wani, (1972 Cri LJ 277) stated, that non-compliannnce of Section 204(1-A) of the old code, corresponding to Section 204(2) of the present code, was not an illegality which renndered subsequent proceedings null and void, but was a curable irregularity. It was further stated, that Section 204(1-A) contained a salutary provision made solely for the protection and benefit of the accused and had to be complied with normally. However, it was not mandatory in the sense, that even if no prejudice is caused to the accused, it will vitiate the trial.
24. S. Natarajan, J., in Vivekanantham v. Viswanathan, (1976 Mad LW (Cri) 215) : (1977 Cri LJ 425), while construing the provisions of Section 244 Cr.P.C., regarding permissibility of filing supplemental or additional evidence of witnesses, in a private complaint case, stated as follows (at p. 427 of Cri LJ):--
"Though S. 204(2) of the new Code prescribes that no summons or warrant shall be issued against the accused under sub-s. (1) until a list of the prosecution witnesses has been filed that can not be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the Court to examinne additionnal witnesses even where circumstances or interests of justice warrant such examination."
25. It was further observed:
"To give a fettered or restricted meaning to S. 244 Crl.P.C. will defeat the very ends of justice and it could never have been the intention of the Parliament to curtail the rights of complainants in private cases in such a manner."
26. These observations, to my mind, are very relevannt for, ultimately the court is concerend with the ends of 15 2025:HHC:6952 justice coupled with the opportunity that must be afforded to either party in a private complaint case. Now that it is possible, in the instant case, for the trial Magistrate, to direct the respondent to furnish a list of witnesses before trial commences, there can be no manner of prejudice whatever, to the petitioner. As I have already stated, the object and purpose behind the provision should not be over-looked, while assessing the rights of parties and furtherance of the cause of justice.
27. Pratap Singh, J., in K. Sarojini v. K.N. Varadarajan, (1992 Mad LW (Crl. 126) while interpreting Section 204(3) Cr.P.C. which reads, that in a proceeding instituted upon a complainant made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint, held that failure to send a copy of complaint along with summons would not vitiate the proceedings. This provision must be held to be directory and not mandatory, while arriving at such aconclusion, learned Judge has referred to the case law available on the subject. I hold, that on the ground of non-appending of a list of witnesses in the complaint, the impugned proceedings cannot be quashed. Now that all grounds urged have been negatived, this petition, which has no merit, shall stand dismissed."
16. Allahabad High Court held in Molvi Habibur Rahman Faizi v. State of U.P., 1997 SCC OnLine All 1073 as under:
"4. Sub-section (2) of Section 204, Cr. P.C. provides that no summons or warrant shall be issued against the accused under sub-section (1) until a list of prosecution witnesses has been filed. Learned counsel for the applicants pointed out that this provision is mandatory in nature and since the complainant-opposite party had not filed the list of the prosecution witness, issuance of summons/processes against the applicants was illegal. On behalf of opposite party No. 2 it is maintained that he did file a list of the prosecution witnesses but on account of 16 2025:HHC:6952 certain manipulations at the instance of the applicants, the list has been taken off the record and is, therefore not treaceable. The opposite party-complainant filed another list of the prosecution witnesses.
5. It is true that sub-section (2) of Section 204 forbids the issue of summons or warrant against the accused until a list of prosecution witnesses has been filed. The object of this provision appears to be to enable the accused to prepare himself for their cross examination. It would really mean filing of such a list at the time of lodging the complaint as there will be no suitable opportunity afterwards, for if the Magistrate decides to issue process, the service will be delayed for want of list, but it cannot mean that in no case shall process be issued against the accused without the list of witnesses. Sub-section (2) does not disentitle the complainant from giving additional list of witnesses and the court in issuing summons and examining them. This provision cannot be construed to mean that in no circumstances can a person, not included in the list, be examined as a witness at the trial. If the contention of the learned Counsel for the applicants is accepted that would make Section 254(1), Cr. P.C. otiose and useless. Sub-section (2) only imposes a condition for issue of summons against the accused and once he is summoned, the power to issue summons to the witnesses is regulated by Section 254. The complainant cannot be tied inexorably to the list of witnesses under sub-section (2) of Section 204. Even if it is construed that the provisions of Section 204(2), Cr. P.C. are mandatory in nature, taking into consideration Section 465, issuing processes cannot be set aside unless it has resulted in failure of justice. In Madhvan Nambiar v. Govindan, 1982 Cri LJ 683 it was held by Kerala High Court that omission to file list of witnesses does not vitiate the proceedings if the process is otherwise served. It was further held in Abdullah Bhai v. Gulam Mohd., 1972 Cri LJ 277 (J. and K.) (FB) and Kanhu v. Durga, 1980 Cri LJ 518 (HP) that 17 2025:HHC:6952 omission to file a list of witnesses is an irregularity curable under Section 465, Cr. P.C."
17. Similar view was taken by Madhya Pradesh High Court in Rakesh Kumar Sharma v. Satpuda Narmada Kshetriya Gramin Bank, 2015 SCC OnLine MP 2464, wherein it was held:-
"10. The respondent, in rebuttal to the contention of the petitioner that no list of witnesses was filed, has filed the said list along with IA No. 1467/2015. There is no reply to the said IA by the petitioner. However, it is seen that parties have taken a diametrically opposite stand on the factum of filing of said list before the court below. Therefore, this matter may be examined from another angle. Kerala High Court dealt with this aspect in 1982 Cri.L.J. 683 (Madhavan Nambiar v. Govindan). Para 7 of the judgment reads as under:-
"The purpose of S.204(2) is to convince the court that there are proper materials to support the case and to enable the accused to know in advance what are the materials that the complainant is likely to produce against him. If this purpose is served otherwise, the omission to file a list of witnesses will not vitiate the proceedings. At the most what can be stated is that the court may insist on a list of witnesses being filed and refuse to issue process before such a list is made available. Reference. may be made to the decision of the Supreme Court in Mowu v. Supdt. Special Jail, Nowgong, 1972 SCC (Cri) 184, a case which arose Under S. 204(1-A) of the Code of 1898. A similar contention was raised in that case regarding the non- production of the list of witnesses. The Supreme Court overruled the objections and observed:
It is true that Section 204(1-A) requires that a Magistrate shall not issue a process until a list of the prosecution witnesses has been filed before him. This 18 2025:HHC:6952 provision is intended to be a safeguard for an accused person so that he knows beforehand what evidence is likely to be produced against him. Before the Magistrate issued the warrant he had both the complaint and the first information report before him which presumably contained particulars of the various offences charged against the petitioner, and in this particular case, the manner and the circumstances in which he was arrested as also the persons who apprehended him, the materials, that is to say, the arms and ammunition, and various documents seized from him at the time of his arrest. The complaint and the first information report, therefore, would disclose the evidence which would be relied upon by the prosecution although a list of witnesses might not have been filed before the Magistrate. Section 204 has also been the subject matter of interpretation by this Court in Maniyani v. State of Kerala, 1979 Ker LT 183. It was held that mention in the complaint itself of the names of witnesses would be sufficient compliance of Section 204(2) of the Code and that non-compliance of the provision does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in preiudice to the accused. In the light of the above decisions the contention that the complaint should not have been acted upon in view of the non-compliance of Section 204(2) of the Code has no force."
11. In 1995 Cr.L.J. 352 (F.A. Poncha v. M. Meherjee), the Madras High Court opined as under:-
"19. Observations of T.U. Mehta, C.J. of Himachal Pradesh High Court, in Kanhu Ram v. Durga Ram, (1980 Cri LJ 518), appear to be relevant in this context. Learned Judge stated, that even if filing of a list contemplated by sub-section (2) of Section 204 Cr.P.C. was considered to be mandatory, the provisions contained in Section 465 the Code may have to be taken into consideration, before declaring the issue of 19 2025:HHC:6952 process as illegal. Therefore, order issuing process cannot be set aside, unless the Court found, that it had resulted in failure of justice. It was further held, that the order had not resulted in failure of justice, since the matter had not yet proceeded further and the complainant could be asked to furnish a list of witnesses, before evidence was recorded in the case, so that the accused, for whose protection, sub-section (2) of Section 204 enacted, could know the nature of evidence, which the complainant was likely to produce."
12. In (2002) 2 Maharashtra Law Journal 100 (Pramila Mahesh Shah v. Employees State Insurance Corporation), the Nagpur Bench opined as under:-
"29. Coming to section 204(2) of Criminal Procedure Code, I must say that the non-compliance of this provision does not affect the jurisdiction of the Magistrate either to issue process or to try the case. This view has been taken by the Apex Court in Noorkhan v. State of Rajasthan, Madhaorao Pandurang v. Yeshwant; Abdullah Bhat v. Ghulam Mohd. Wani, and Shashi Ndir v. R.C. Mehta (supra). The procedural laws are hand maid of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of section 204(2) are mandatory, that, by itself, would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of list of witnesses, if any, before the proceedings actually commenced. The stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused. In the case under consideration, the substantive proceedings had not yet started. Therefore, in the circumstances, directions to the complainant to supply copy of witnesses, if any, within a period of four weeks from the receipt of the copy of the order by the trial Court 20 2025:HHC:6952 would be considered as sufficient compliance of section 204(2) of Criminal Procedure Code, 1973."
13. In view of aforesaid legal position, it is clear that mechanically no interference is warranted by this Court even if the list of witnesses was not filed along with the complaint. The party complaining against must establish prejudice. In the present case, the petitioner could not establish any such prejudice. Even otherwise, it is apparent from the impugned order that the matter was at initial stage. In this factual backdrop, in my view, it will not be proper to set aside the portion of the impugned order, by which the court below has directed to issue warrant, more so, when the petitioner is unable to prove that such list was actually not filed. Resultantly, I am only inclined to hold that if such list of witnesses has not been provided to the present petitioner, it be provided to him forthwith. Thereafter, the court below may proceed with the matter in accordance with law.
18. The judgment in Kanhu Ram (supra) is binding upon this Court. Therefore, the submission that there is a violation of the mandatory provisions of law cannot be accepted.
19. It was submitted that the learned Magistrate had not applied her mind, and the order is bad. This submission is not acceptable. Learned Magistrate has passed an order running into three pages. She had noticed the statements made by the witnesses, the effect of those statements and the applicable provisions of IPC. Therefore, the submission that the learned Magistrate had not applied her mind cannot be accepted.
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20. It was submitted that a complaint was made by the complainant to the police and a cancellation report was submitted to the Court. The Court accepted the cancellation report and rejected the protest petition filed by the complainant.
Therefore, the present complaint is not maintainable. This submission is only stated to be rejected. It was laid down by the Hon'ble Supreme Court in Subrata Choudhury v. State of Assam, 2024 SCC OnLine SC 3126 that the acceptance of the final report does not prevent the complainant from filing a complaint on the same set of facts and there is no violation of Section 300(1) of Cr.P.C. It was observed:-
"5. In the wake of aforesaid factual background, the appellants, relying various decisions of this Court, contended that the second complaint filed by the second respondent-complainant is not maintainable. It is contended that the High Court had failed to consider the provisions under Section 300 (1), Cr. P.C., which resulted in dismissal of the revision petition. Dilating the said contentions, further grounds founded on Section 300 (1) of the Cr. P.C., are raised.
6. Before dealing with the other contentions raised to assail the judgment dated 08.01.2021, we think it is only appropriate to consider the contentions raised by the appellants founded on Section 300 (1), Cr. P.C., reads thus:
"300. Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence 22 2025:HHC:6952 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."
7. In view of the indisputable and undisputed facts, referred hereinbefore, revealing the outcome of the first complaint dated 11.11.2010 and taking into account the stage of the second complaint the question is whether Section 300 (1), Cr. P.C., is applicable or not to the case at hand.
8. Section 300 (1), Cr. P.C., is found on the maxim "Nemo debet bis vexari pro una et eadem causa", which means that no one shall be vexed twice for one and the same cause. The Section provides that no man once convicted or acquitted shall be tried for the same offence again for one and the same cause. Thus, it can be seen that in order to bar the trial in terms of Section 300 (1), Cr. P.C., it must be shown:--
a. that the person concerned has been tried by a competent Court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts.
b. that he has been convicted or acquitted at the trial and that such conviction or acquittal is in force.
9. This fundamental rule of our criminal law revealed from this Section enables raising of the special pleas of autrefois acquit and autrefois convict, subject to the satisfaction of the conditions enjoined thereunder. This position has been made clear by this Court in Vijayalakshmi v. Vasudevan (1994) 4 SCC 656. In the case at hand, the undisputed facts stated hereinbefore would reveal that the appellants were never ever tried before a Court of competent jurisdiction for the aforesaid offence(s) on the basis of the aforesaid set of facts.
232025:HHC:6952 Therefore, indisputably there was no verdict of conviction or acquittal in regard to the aforesaid Sections in respect of the appellants on the aforesaid set of facts, by a Court of competent jurisdiction. When that be the position, we have no hesitation to hold that the grounds founded on Section 300 (1), Cr. P.C. raised by the appellants merit no consideration.
10. As noted at the outset, the question of law raised before and decided by the High Court was whether after the acceptance of the Final Report filed under Section 173, Cr. P.C., upon considering the written objection/protest petition and hearing the complainant, a fresh complaint on the same set of facts is maintainable or not. There can be no two views as relates the position that there can be no blanket bar for filing a second complaint on the same set of facts. We will deal with the moot question and the aforesaid position a little later.
11. Firstly, the question as to what are the courses available to a Magistrate on receipt of a negative report is to be looked into and in fact, that question was considered by this Court in Bhagwat Singh v. Commissioner of Police (1985) 2 SCC 537. This Court held that on receipt of a negative report, the following four courses are open to the Magistrate concerned:--
1. to accept the report and to drop the proceedings;
2. to direct further investigation to be made by the police.
3. to investigate himself or refer the investigation to be made by another Magistrate under Section 159, Cr.
P.C., and
4. to take cognizance of the offence under Section 200, Cr. P.C., as private complaint when materials are sufficient in his opinion as if the complainant is prepared for that course.
The indisputable position is that in the case at hand the learned CJM on receipt of the negative report accepted it 24 2025:HHC:6952 after rejecting the written objections/protest petition, which is one of the courses open to a Magistrate on receipt of a negative report, in terms of Bhagwat Singh's case (supra).
12. In view of the confirmance of the judgment of the learned Sessions Judge carrying the following observations/findings it is not inappropriate to delve into them for the limited purpose. They, in so far as relevant, read thus:--
"(i) Thus, the present complaint in question is truly qualify to the definition of the term complaint and the same has been filed on being aggrieved against the final report, submitted against his previous complaint.
Hence, in my considered opinion the learned court below misconstrued the definition of the term complaint, by treating the simple objection petition as Narazi complaint, whereas terming the present complaint in question as second complaint.
(ii) Situated thus, the Hon'ble Apex Court of India, in the said decision, (referring to the decision in Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117) specifically observed that even after accepting the final report, it is open to the Magistrate to treat the respective protest petitions as complaints and to take further proceedings in accordance with law."
13. According to us, the observations/findings referred above as (i) is actually an outcome of a misconstruction on the part of the learned Sessions Judge. In troth, the learned CJM termed the subject complaint dated 20.07.2011 as second complaint not with reference to the written objection/protest petition dated 05.05.2011 and it was so treated with reference to the original complaint dated 11.11.2010. This fact is evident from the recitals in Annexure-P9 order dated 12.07.2012 passed by the learned CJM in complaint numbered as Case No. 159/2011, which was challenged before the learned Sessions Judge. In the said order the learned CJM observed and held thus:
252025:HHC:6952 "After the original complaint has been duly investigated by the police and Final Report submitted therein has been accepted by the Court in a Judicial Proceeding; therefore, in my considered view it cannot be re-opened by means of filing of a second complaint in respect of the same facts and circumstances."
In view of the afore-extracted recital from the order dated 12.07.2012 of the learned CJM, it is evident that it was with reference to the original complaint that he termed the complaint filed by the second respondent on 20.07.2011 as the second complaint.
14. The second observation/finding referred above as (ii) also requires a clarification. It is true that correctly this Court held in the decision in Abhinandan Jha v. Dinesh Misra AIR 1968 SC 117 that even after accepting the final report it would be open to the Magistrate concerned to treat respective protest petition as complaint and to take further proceedings in accordance with law.
Section 2(d) of the Cr. P.C. defines the term 'complaint'. No doubt in Cr. P.C., no form for filing complaint is prescribed. However, the essentials to constitute a complaint can be briefly mentioned thus:--
(i) An oral or written allegation;
(ii) That some person(s) known or unknown has committed an offence;
(iii) It must be made to a Magistrate with a view to his taking action.
15. In Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda (1970) 1 SCC 665, this Court, as regards the meaning of a complaint, held thus:--
"11. The word "complaint" has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the 26 2025:HHC:6952 commission of an offence with the necessary facts for the magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence."
16. In the decision in Sunil Majhi v. State AIR 1968 Cal 238, the Calcutta High Court in paragraph 6 held thus:--
"6. The term 'naraji' means 'disapproval' and in the context of things it signifies disapproval of the report in relation to which it is filed. It may simply challenge the report on grounds stated and pray for its rejection : it may while praying for rejection of the report also reiterate the allegations made in the petition of complaint and pray for further action by the court and in that view of the matter it would be a fresh complaint. In the case Jamini Kanta v. Bhabanath. AIR 1939 Cal 273, it was observed:
"The word 'naraji' is often loosely used and it is necessary to examine the petition which is filed in a particular case "to determine its true import in that case on an examination of the petition it was found that it was not a complaint. The reports of the cases cited by Mr. Banerji do not contain any discussion about the nature of the statements made in the naraji petitions in those cases, but from the fact that the naraji petitions were treated as complaints it would appear that they did satisfy the requirements of a complaint as defined in section 4(h) of the Code in order to be a complaint the petition must contain allegations of an offence and also a prayer for judicial action thereon. If therefore, the protest petition filed against an enquiry report filed or to be filed, while lodging a protest recites also the allegations already made and prays for action of the court thereon, there is no difficulty in treating it as a complaint and taking action thereon under Sections 202, 203 or 204 of the Cr 27 2025:HHC:6952 PC. In the cases of Lachmi Shaw. AIR 1932 Cal 383 (1) (Supra) and Satkari Ghose. AIR 1941 Cal 439 (Supra) there were complaints to the police which were found on investigation to be false and the police submitted final reports and at the same time prayed for prosecuting the complainant under section 211 I.P.C. Naraji petitions were filed against the police reports but prosecutions were launched without considering them and it was held that the procedure followed was irregular and that the naraji petitions should be treated as complaints and treated and disposed of as such before the prayer for prosecuting the complainant could be entertained."
17. In the light of the aforesaid decisions, we are of the view that a 'narazi' viz., disapproval against a final report submitted in a case investigated by the police on a first information report registered pursuant to the forwarding of a complaint under Section 156(3), Cr. P.C., for investigation should be treated as a complaint only if the same satisfies the requirement in law to constitute a complaint as defined under Section 2(d), Cr. P.C. As held in Sunil Majhi's case (supra), if while praying for rejection of a final report after reiterating the allegations made in the original complaint and prayer for further action by the court, the same could be treated as a fresh complaint, but then, we may hasten to add that its maintainability depends upon the question as to how the original/protest petition was disposed of.
18. It is relevant to note that in paragraph 9 of the judgment dated 28.02.2013 (Annexure-P10), the learned Sessions Judge after referring to the term 'complaint,' defined under Section 2(d) of the Cr. P.C. and taking note of the aforesaid essentials to constitute a complaint made a scrutiny of the written objection dated 05.05.2011 submitted by the second respondent-complainant against the negative report dated 28.02.2011 held that the 28 2025:HHC:6952 said objection dated 05.05.2011 could not be termed as a 'narazi complaint' and found that it did not qualify to the definition of the term 'complaint'. In that context, with reference to the definition in Section 2(d) of the Cr. P.C. and the essentials to constitute a complaint as referred above, it can only be said that the said finding of the learned Sessions Judge is perfectly in tune with the position of law. Once that is so found and when it is a fact that the negative report on the original complaint dated 11.11.2010 was accepted after rejecting the written objection/protest petition dated 05.05.2011 it cannot be said that the learned CJM has gone wrong in describing the complaint dated 20.07.2011 as the second complaint. The clarification required to the observation/finding referred to as (ii), with reference to the Abhinandan Jha's case (supra) is that though it would be open to the Magistrate to treat a protest petition as complaint and to take further proceedings in accordance with law even after accepting final report that is permissible only if the protest petition concerned satisfies the ingredients to constitute a complaint as defined under Section 2(d), Cr. P.C. Since the narazi petition dated 05.05.2011 did not satisfy the ingredients to attract Section 2(d), Cr. P.C., it could not be treated as a complaint as held by the learned Sessions Judge. At the same time, in view of what is stated above and taking note of the fact that the allegations made in the original complaint are reiterated in the complaint dated 20.07.2011 and pray for further action by the court, it is rightly taken by the courts below as a complaint. Since the final report on the original complaint was already accepted after rejecting the narazi petition the complaint dated 20.07.2011 which satisfies all requirements of a complaint, if at all having the characteristics of a protest petition, could be treated as a complaint and hence, the learned CJM and the learned Sessions Judge have rightly treated it as a complaint."
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21. Therefore, the submission that the learned Magistrate erred in accepting the complaint after the acceptance of the final report and rejection of the protest petition is not acceptable.
22. It was submitted that the statements made by the witnesses are contradictory to each other. This is not to be seen at this stage. The Court has to see whether there is sufficient material to proceed against the case or not while summoning the accused. It is not concerned with the correctness or otherwise of the allegations made by the complainant. It is a matter of trial and cannot be appreciated at this stage.
23. No other point was urged.
24. Consequently, the present petition fails and the same is dismissed.
25. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.
26. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 22.4.2025.
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27. The present petition stands disposed of and so are the miscellaneous applications if any.
28. Registry is directed to transmit the records of the case file to the learned Trail Court, so as to reach well before the date fixed.
(Rakesh Kainthla) Judge 21st March, 2025 (Chander)