Jharkhand High Court
Unknown vs The State Of Jharkhand on 2 December, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P. (Cr) No. 873 of 2023
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1.Md. Ekram Uddin @ Ekram Quraishi, aged about 48 years, son of Ekbal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi, resident of Charm Godam, Village Rajdhanwar, P.O. and P.S. Rajdhanwar, District Giridih
2.Md. Shahban Alam @ Shanban Quraishi @ Sahban Quraishi aged about 46 years son of Md. Ikbal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmad, resident of Charm Godam, Village Rajdhanwar, P.O. and P.S., Rajdhanwar, District Giridih
3.Md. Noushad Alam @ Naushad Quarishi aged about 38 years, son of Iqubal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmad, resident of Charm Godam, Village Rajdhanwar, P.O. and P.S. Rajdhanwar, District Giridih
4.Meraj Alam @ Md. Meraj Alam @ Meraj Quraishi, aged about 45 years, son of Ikbal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmad, resident of Charm Godam, Village Rajdhanwar, P.O. and P.S. Rajdhanwar, District Giridih
5.Md. Irshad Alam @ Gorki Quraishi @ Gorki Quraishi aged about 33 years, son of Ikabal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmad, resident of Chamda Godam, Village Rajdhanwar, P.O. and P.S. Rajdhanwar, District Giridih
6.Md. Shamshad Alam @ Ginni Quraishi @ Gini Qureshi aged about 33 years son of Iqubal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmad, resident of Chamda Godam, Panchayat Dakshini, Dhanwar, Block Dhanwar, Gandhi Chowk, Village Dhanwar, P.O. and PS Dhanwar, District Giridih
7.Md. Dilshad Quraishi @ Khurshid Quraishi @ Khursheed Quraishi aged about 35 years son of Ikbal Ahmad @ Ekbal Quraishi @ Eqbal Quraishi @ Ekbal Ahmed, resident of Chamda Godam, resident of Village Rajdhanwar PO and PS Rajdhanwar, District Giridih.
8.Md.Aslam Alam @ Minu Quraishi @ Minu, aged about 46 years, son of Abdul Hamid @ Ekbal Quraishi @ Ekbal Quraishi resident of Charm Godam, village Rajdhanwar PO and PS Rajdhanwar District Giridih
9.Md. Ikbal Ahmad @ Ikbal Ahmad @ Eqbal Quraishi aged about 73 years
-1- [W.P. (Cr) No. 873 of 2023] son of Md. Yakin @ late Akim Quraish resident of Charm Godam Village Rajdhanwar, P.O. and PS Rajdhanwar District Giridih
10.Md. Sajrul Ansari, aged about 43 years son of Makbul Ansari, resident of Panchayat Lalbazar, Block Rajdhanwar, Gram Lalbazar, P.O. Khorimahua, P.S. Rajdhanwar, Distirct Giridih
11.Md. Sarfraz Alam @ Sarfraz Quraishi @ Kallu Chacha @ Sarferaz, aged about 46 years, son of late Abdul Jabbar @ Bhure Miya, resident of Molana Azad Chowk, P.O. and P.S. Giridih, District Giridih .... Petitioners
-- Versus --
1.The State of Jharkhand
2.Md. Shamsher Ansari, son of Jabir Ansari, resident of Village Lal Bazar, P.O. and P.S. Dhanwar, District Giridih .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Pratyush Shounikya, Advocate
For the State :- A.C. to Sr.S.C.-III
For the Respondent No.2 :- Mr. S.K. Murty, Advocate
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9/02.12.2024 Heard the learned counsel appearing on behalf of the
petitioners, the learned counsel appearing on behalf of the respondent State as well as the learned counsel appearing on behalf of the respondent no.2.
2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 27.05.2023 whereby the learned court has been pleased to take cognizance under section 323 and 379 of the IPC arising out of Complaint Case No.1656 of 2019, pending in the court of learned Judicial Magistrate, First Class, Giridih.
3. The present complaint case has been filed alleging therein
-2- [W.P. (Cr) No. 873 of 2023] that the mother of the complainant has purchased a land of total area 2 acres 80 decimals through a registered sale deed on 28.12.2018 from Jabir Ali Ansari in Khata No.36, Plot no.222 and total Rakba is 121 decimals. The complainant was in peaceful possession of the aforesaid land in which Asbestos House has been constructed. The accused persons on the date of occurrence i.e. on 19.7.2019 at 4 O' Clock has demolished the wall of the house and have tried to take away some of the building materials worth Rs.92,000/-. The mother of the complainant and other witnesses opposed the same and during the quarrel, the accused persons have beaten the mother of the complainant and they have torn her blouse and saree and have also snatched Hasuli of one of the witness namely Julekha Khatoon and has also snatched Rs.4000/-
and finally they have taken everything. While running away they have also cut the trees which they have taken with them. They were also asking Rangdari Tax of Rs.50,000/- for the construction of house. Based on the aforesaid allegation, complaint was lodged vide Complaint Case No.1656 of 2019 under various sections of Indian Penal Code.
4. Learned counsel appearing on behalf of the petitioners submits that for the same allegation two cases have been lodged. He submits that prior to lodging of the present complaint, the Complaint Case No.430 of 2019 was filed against the petitioners for the same allegation which was sent by the learned court under section 156(3) Cr.
P.C. and pursuant to that police has registered the same being Dhanwar P.S. Case No.82 of 2019 and the final form has been submitted saying that this case is civil in nature. He submits that in the earlier case the learned court has been pleased to issue notice upon the respondent no.2 and notice was served and the respondent no.2 has chosen not to
-3- [W.P. (Cr) No. 873 of 2023] appear before the learned court and he has also not filed any protest petition. He submits that it appears that during pendency of the earlier complaint, present complaint has been filed which is registered as Complaint Case No.1656 of 2019 and thereafter the learned court has been pleased to take cognizance. He submits that in the present complaint also the filing of the earlier case has been suppressed and in view of that the entire proceeding is malicious in nature. According to him, once the final form is submitted, the respondent no.2 is having option either to appear before the learned court or file protest petition or not to appear; he has chosen the later action as inspite of the notice, the respondent no.2 has not appeared before the learned court and the learned court has accepted the final form and as such, the finality has taken place with regard to the issue in question. On this ground, he submits that the entire criminal proceeding may kindly be quashed so far as the present complaint is concerned.
5. Learned counsel for the respondent State submits that in the earlier case the police has submitted final form saying the case of civil in nature, however, from the year of filing of the second complaint, it transpires that during pendency of earlier case, the present complaint has been lodged as the final form was submitted in the year 2021. He submits that filing of the earlier case is suppressed in the present case, which is under challenge in the present writ petition.
6. Leaned counsel for the respondent no.2 submits that notice in the earlier case notice has not been received and in absence of notice the learned court has accepted the final form and as such, the second complaint was maintainable. However, on query of the Court, he has accepted that facts of both the cases are similar.
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7. In view of above submission of the learned counsel appearing on behalf of the parties, the Court has gone through the contents of the Complaint No.1656 of 2019 which is under challenge in the present writ petition as well as the contents of the earlier complaint being Complaint Case No.430 of 2019. Comparing the contents made in both the complaints the allegation are similar which relates to Khata No.46, Plot No.322, Rakba 21 decimals and even the amount of rs.72,000/- and Rs.20,000/- has been disclosed in paragraph no.3 and both the cases are similar. Thus, it is an admitted position that for the same allegation, the present complaint has been filed and the earlier was investigated by the police and final form has been submitted saying that the case is civil in nature and pursuant to that notice was issued by the learned court upon the respondent no.2 by the order dated 08.02.2022 and notice was served which is reflected in the order dated 08.03.2022 and thereafter the learned court has accepted final form. In view of these two orders contained in Annexure-6 of the writ petition the contention of the learned counsel for the respondent no.2 is not being accepted by the Court as he has also not challenged these two orders before the competent court. Further the charge sheet in the earlier case was submitted in the year 2021 wherein the present complaint case has been filed in the year 2019 and in the present complaint filing of the earlier case is not disclosed which clearly suggest that maliciously the second complaint has been filed.
8. It is well settled that only in exceptional circumstances, the second complaint can be entertained and there are four criterias of entertaining the second complaint and this aspect of the matter was considered by the Hon'ble Supreme Court in the case of Poonam
-5- [W.P. (Cr) No. 873 of 2023] Chand Jain v. Fazru reported in (2010) 2 SCC 631 which was again considered in the case of Samta Naidu and Another v. State of Madhya Pradesh and Another reported in (2020) 5 SCC 378 wherein at paragraph nos.12.2,12.3 and paragraph no.16 of the said judgment, it has been held as under:
"12.2. In Ranvir Singh v. State of Haryana [Ranvir Singh v. State of Haryana, (2009) 9 SCC 642 : (2010) 1 SCC (Cri) 96] the issue was set out in para 23 of the decision and the discussion that followed thereafter was as under : (SCC p. 647, paras 23-26) "23. In the instant case, the question is narrowed down further as to whether such a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in the process fees for effecting service.
24. The answer has been provided firstly in Pramatha Nath Talukdar case [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] , wherein this Court had held that even if a complaint was dismissed under Section 203 CrPC, a second complaint would still lie under exceptional circumstances, indicated hereinbefore. The said view has been consistently upheld in subsequent decisions of this Court. Of course, the question of making a prayer for recalling the order of dismissal would not be maintainable before the learned Magistrate in view of Section 362 CrPC, but such is not the case in these special leave petitions.
25. In the present cases, neither have the complaints been dismissed on merit nor have they been dismissed at the stage of Section 203 CrPC. On the other hand, only on being satisfied of a prima facie case, the learned Magistrate had issued process on the complaint.
26. The said situation is mainly covered by the decision of this Court in Jatinder Singh case [Jatinder Singh v. Ranjit Kaur, (2001) 2 SCC 570 : 2001 SCC (Cri) 354] , wherein the decision in Pramatha Nath Talukdar case [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] was also taken into consideration and it was categorically observed that in the absence of any provision in the Code barring a second complaint being filed on the same allegation, there would be no bar to a second complaint being filed on the same facts if the first complaint did not result in the conviction or acquittal or even discharge of the accused,
-6- [W.P. (Cr) No. 873 of 2023] and if the dismissal was not on merit but on account of a default on the part of the complainant."
12.3. In Poonam Chand Jain v. Fazru [Poonam Chand Jain v. Fazru, (2010) 2 SCC 631 : (2010) 2 SCC (Cri) 1085] the issue whether after the dismissal of the earlier complaint had attained finality, could a second complaint be maintained on identical facts was considered as under :
(SCC pp. 634-36, paras 14-20) "14. In the background of these facts, the question which crops up for determination by this Court is whether after an order of dismissal of complaint attained finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal.
15. Almost similar questions came up for consideration before this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] . The majority judgment in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] was delivered by Kapur, J. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short "the Code") is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as:
(a) where the previous order was passed on incomplete record, or
(b) on a misunderstanding of the nature of the complaint, or
(c) the order which was passed was manifestly absurd, unjust or foolish, or
(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
16. This Court inPramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if
-7- [W.P. (Cr) No. 873 of 2023] the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. (para 50, p. 899)
17. This question again came up for consideration before this Court in Jatinder Singh v. Ranjit Kaur [Jatinder Singh v. Ranjit Kaur, (2001) 2 SCC 570 : 2001 SCC (Cri) 354] . There also this Court by relying on the principle in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 :
1962 Supp (2) SCR 297] held that there is no provision in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are "exceptional circumstances". This Court held in para 12, if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in filing a second complaint on the same facts. However, if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different.
18. Saying so, the learned Judges in Ranjit Kaur [Jatinder Singh v. Ranjit Kaur, (2001) 2 SCC 570 : 2001 SCC (Cri) 354] held that the controversy has been settled by this Court in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] and quoted the observation of Kapur, J. in para 48 of Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 :
1962 Supp (2) SCR 297] : (AIR p. 899, para 48) '48. ... An order of dismissal under Section 203 of the 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 interest 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.'
19. Again in Mahesh Chand v. B. Janardhan Reddy [Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734 : 2003 SCC (Cri) 425] ,
-8- [W.P. (Cr) No. 873 of 2023] a three-Judge Bench of this Court considered this question in para 19 at p. 740 of the Report. The learned Judges of this Court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand [Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734 : 2003 SCC (Cri) 425] this Court relied on the ratio in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] were reiterated. Therefore, this Court holds that the ratio in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 :
1962 Supp (2) SCR 297] is still holding the field. The same principle has been reiterated once again by this Court in Hira Lal v. State of U.P. [Hira Lal v. State of U.P., (2009) 11 SCC 89 : (2009) 3 SCC (Cri) 1247] In para 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand [Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734 : 2003 SCC (Cri) 425] discussed hereinabove.
20. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the knowledge of the first complainant. In fact, such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] . In that view of the matter the second complaint in the facts of this case, cannot be entertained."
(emphasis supplied)
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16. As against the facts in Shivshankar [Shivshankar Singh v. State of Bihar, (2012) 1 SCC 130 : (2012) 1 SCC (Cri) 513] , the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Talukdar [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770 : 1962 Supp (2) SCR 297] as explained inJatinder Singh [Jatinder Singh v. Ranjit Kaur, (2001) 2 SCC 570 : 2001 SCC (Cri) 354] and Poonam Chand Jain [Poonam Chand Jain v. Fazru, (2010) 2 SCC 631 : (2010) 2 SCC (Cri) 1085] . The High Court was thus not justified in holding the second complaint to be maintainable.
9. The procedure with regard to accepting the final form is further dealt by the Hon'ble Supreme Court in the case of Vishnu Kumar Tiwari v. State of Uttar Pradesh Through Secretary, Home, Civil Secretariat, Lucknow and Another reported in (2019) 8 SCC 27 wherein at paragraph no.43 it has been held as under:
"43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR 1958 Ori 11] , a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows:
-10- [W.P. (Cr) No. 873 of 2023] (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6) "6. ... In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] also what was observed was "it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint". This observation would not mean that every protest petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case." (emphasis supplied)
10. In view of above two judgments of the Hon'ble Supreme Court, the law is well settled. However, second complaint can be maintained and the circumstances are disclosed in paragraph nos.12.2 in the judgment of Hon'ble Supreme Court in the case of Samta Naidu and Another v. State of Madhya Pradesh and Another (supra).
11. The respondent no.2 during pendency of earlier complaint, second complaint lodged and in the earlier case the charge sheet was submitted in the year 2021 which was accepted by the learned court by orders dated 08.02.2022 and 08.03.2022 as contained in Annexure-6.
Looking to that order, it is crystal clear that notice was issued and it has been accepted and that was not challenged by the respondent no.2 and in view of that, that case has attained finality and the contents of both
-11- [W.P. (Cr) No. 873 of 2023] the complaints are similar and even the filing of the earlier case is not disclosed in the present complaint case which is subject matter of writ petition which clearly suggest that maliciously the case has been lodged and further the contents of both the complaints are similar and as such, to allow the proceeding to continue will amount of abuse of process of law.
12. Accordingly, entire criminal proceeding including the order taking cognizance dated 27.05.2023, arising out of Complaint Case No.1656 of 2019, pending in the court of learned Judicial Magistrate, First Class, Giridih are, hereby, quashed.
13. This petition is allowed and disposed of.
14. However, it is made clear that if the civil proceeding is there, it will be decided in accordance with law without prejudice to this order.
15. Pending petition, if any, also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
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