Patna High Court
Prithvi Bhagat And Anr. vs Birju Sada on 8 December, 1961
Equivalent citations: AIR1962PAT316, AIR 1962 PATNA 316, 1963 ALLCRIR 21 1962 BLJR 221, 1962 BLJR 221
JUDGMENT Raj Kishore Prasad, J.
1. This is a reference, under Section 438 of the Code of Criminal Procedure, hereinafter referred to as the Code; by the learned Additional Sessions Judge, Bhagalpur, recommending that the order dated the 11th February 1961, of the learned Magistrate summoning the petitioners to take their trial be quashed.
2. The facts, leading up to the present reference, may briefly be stated as follows:
3. One Birju Mushar filed a complaint on the 28th October 1960, against the petitioners under Sections 436, 323 and 504, Indian Penal Code, before Mr. R. Mishra, Sub Divisional Magistrate at Madhipur. The learned Sub-Divisional Magisrtrate took cognizance of the case, and, after examining the complaint opposite party sent the complaint for enquiry and report to the officer-in-charge, Singheshwar Police Station. On the 16th December, 1960, the report of the Enquiring Officer was received, in which he reported that the complaint was totally false. After perusing the said report, the learned Sub Divisional Magistrate, in presence of the complainant, dismissed the complaint under Section 203 of the Code on the same date.
4. On the 27th October, 1960, the day previous to the filing of the complaint in court, Birju Mushar opposite party, also got his fardbeyan recorded before the Sub-Inspector of Singheshwar Asthan police station on the basis of which a formal first information report was drawn up under Section 436, Indian Penal Code. On the 8th November, 1960, a final report was submitted by the police saying that the case was maliciously false.
5. On the 16th December, 1960, after the complaint of Birju Mushar had been dismissed by the learned Sub-Divisional Magistrate, a prayer was made on his behalf that as in the police case he has filed a protest petition, the case started on his complaint and the case started on the police report be heard together. The learned Sub Divisional Magistrate allowed the prayer of the complainant and fixed 22nd December, 1960, for hearing notwithstanding that the complaint had earlier the same days been dismissed by him.
6. On the 22nd December, 1960, after hearing both parties, the learned Sub-Divisional Magistrate held that he was convinced that a prima facie case had been made out and, therefore, he toot cognizance under Section 323, Indian Penal Code, and, transferred the case to Sri S.N. Ray Magistrate, for disposal.
7. On the 16th January, 1961, both the parties filed a joint petition. of compromise, before the trying Magistrate, to whom the case had been transferred for disposal, and he accepted the compromise and acquitted the petitioners, who were accused before him, under Section 345 of the Code.
8. Later, on the same day, i. e. 16th January, 1961, in spite of the fact that the learned Magistrate had accepted the compromise and acquitted the accused petitioners under Section 345 of the Code, examined the complainant, who stated that he did not want to proceed with the case, as his witnesses had been gained over, and, thereafter discharged him.
9. A week later, on the 23rd January, 1961, the complainant opposite party filed a petition, before the trying Magistrate alleging that the petition filed by him for withdrawing the case was due to misrepresentation of facts, and, therefore, he did not want to withdraw the case. This petition of the complainant opposite party was considered by the learned Magistrate on the 11th February, 1961.
10. The learned Magistrate, on that day, i.e. 11th February 1961, recorded an order that the complainant, on being examined, stated that as the petition for withdrawing the case was filed by him by "dhokha", he did not want to withdraw the case and as it was pointed out that the case was also not compoundable, he revived the case, and, therefore, summoned the accused petitioners to be present on the 8th March, 1961. The petitioners thereafter, moved the learned Sessions Judge for making a reference to this court for quashing the said order and the proceeding against them.
11. From the foregoing facts, there is no doubt that the learned trying Magistrate, to whom the case was transferred for disposal, has committed illegality.
12. The first ground given by the learned judge that the Sub-Divisional Magistrate, having dismissed the complaint could not revive its is however not correct in law.
13. A dismissal of a complaint of the complainant, under Section 203 of the Code, after considering the statement on oath (if any) of the complainant and his witnesses and the result of the investigation or enquiry (if any) under Section 202 of the Code, amounts to a legal determination of the complaint. But as a dismissal of a complaint by a Magistrate under Section 203 is a dismissal without a trial, it is open to him at a later stage to rehear the complaint, which he has dismissed under Section 203, and to issue process against the persons complained against, and, lb revive the proceeding. notwithstanding that the order of dismissal has not been set aside by a higher court, and, even that in the meanwhile the Sessions Judge or the District Magistrate has in revision refused to direct a further enquiry. An order under Section 203 of the Code is not a "judgment" to which the provisions of SECTION 369 of the Code will apply. Nor is the dismissal of a complaint under Section 203 an order of "acquittal" within the meaning of Section 408 of the Code, and, therefore, the Principle of autrefois acquit also will not apply. As there is no trial, when the complaint is dismissed under Section 203 of the Code, the maxim nemo bis vexari also has no application to an order under section 203. Explanation to Section 403 Specifically provides that the dismissal of a complaint is not an acquittal for the purposes of Section 403. Therefore, neither Section 369 nor Section 403 of the Code is a bar to such a procedure. There is as such no bar under the Code to a complaint being reheard unless the proceedings have reached such a stage of finality that an acquittal or any order operating as such under the Code is recorded. It follows, therefore, that the legal effect of a dismissal of a complaint under Section 203, when no process has issued to the accused is that it does not operate so as to bar its revival. (14) The above view is supported by a Bench decision of this court in Janakdnari v. Emperor, ILR 8 Pat 537 : (AIR 1929 Pat 469), which relied upon a Bench decision of the Calcutta High Court in Jyoandra v. Hem Chandra, ILR 36 Cal 415 and, by a Full Bench decision of the Madras High Court in Emperor v. Chinna Kaliappa. Gouridun, ILR 29 Mad 126 which was later approved by another Full Bench of the same court in Re: Pannuswami Coundan, ILR 55 Mad 622: (AIR 1932 Mad 369):
15. In ILR 29 Mad 126, it was held by the majority (three out of five judges) that the dismissal of a complaint by a Magistrate under Section 203 of the Code does not operate as a bar to the rehearing of the complaint by the Magistrate, even when such order of dismissal has not been set aside by a higher court.
16. In Hum Narain Choubey v. (sic) Jain ILR 27 Patna 986 : (AIR 1.949 Pat 256), the complaint was dismissed under Section 203, alter, considering the final report ol the police that the complaint was maliciously false, but before the dismissal, however, the complainant had filed a protest petition which had not been disposed of. On these facts, it was held by a Division Bench of this court presided over by S.K. Das and Narayan JJ. that the protest petition could be treated as a fresh complaint and the successor Magistrate could take cognizance of it and could order a regular trial. In this case, the cases referred to above were considered.
17. Here, however, we are concerned with the same Magistrate, who dismissed the complaint. It follows a fortiori that the same Magistrate who dismisses the complaint, can rehear the complaint or hear a fresh complaint.
18. In the instant case, therefore, the Sub-Divisional Magistrate having dismissed the complaint was competent to revive it and issue summons to the petitioners. There was. therefore, no absence of jurisdiction in the Sub-Divisional Magistrate in the present case, and, therefore, his order cannot be attacked on that ground. The first ground, therefore, fails.
19. The second ground of the learned Sessions Judge, however, is well founded and must be given effect to. The learned trying Magistrate has obviously committed an illegality. The case, which was transferred to him for disposal, was for an offence under Section 323 I. P. C., and, therefore, when the parties compounded the offence and filed a joint petition of compromise on 16-1-61, and, he accepted the same and acquitted the petitioners obviously Under Sub-section (6) of Section 345 of the Code, his jurisdiction over the case ended, and, thereafter, he had no jurisdiction subsequently to revive the case on the petition of the complaint and to proceed with the trial of the cases against the petitioners on the ground that the petition of compromise filed by the parties was alleged by the complainant to be due to misrepresentation and that it was pointed out that the case was not compoundable also. As rightly pointed out by the learned Additional Sessions Judge, although there was an allegation of arson, the sub-divisional, Magistrate, who took cognizance, did not take cognizance of the offence under Section 436, Indian Penal Code, and, therefore, unless evidence regarding arson was adduced before the trying Magistrate and he summoned the accused to take their trial for an offence under Section 436, I. P. C. and framed a charge thereunder, it was not correct to say that the case before him was not compoundable. The case beiore him was for an offence under Section 323, Indian Penal Code, which was compoundable under Section 345(1) of the Code and, for composition of this offence no permission of the court was necessary, and, therefore, the learned Magistrate, having accepted the compromise petition and acquitted the accused persons under Section 345(6) of the Code, had no jurisdiction to revive the case and to assume jurisdiction to retry the accused persons. When the parties have filed a petition of compromise, they cannot afterwards be allowed to withdraw the petition and to insist upon the case being tried. Since the composition of an offence has the immediate effect of acquittal under Sub-section (6) of Section 345, so as to deprive the Magistrate of his jurisdiction to try the case, the Sub-sequent withdrawal from it by any party can neither affect the acquittal nor revive the jurisdiction of the Magistrate to proceed with the case. When therefore, both the complainant and the accused file a joint petition of compromise and it is accepted by the Magistrate and he acquits the accused under Sub-section (6) of Section 345 of the Code, the complainant cannot, thereafter, withdraw from the compromise, and, as such, his subsequent withdrawal can neither affect the acquittal nor revive the jurisdiction of the Magistrate to proceed with the case.
20. In view of the above position in law, it is manifest that, here, the learned trying Magistrate, after having accepted the composition of the offence and acquitted the petitioners on the 16th January, 1861, could not subsequently on the 23rd January, 1961, revive the case against the petitioners and summon them. The complainant, therefore, having compounded the offence with the petitioners could not withdraw from it and subsequently ask the court to try them for the same offence.
21. For these considerations, I accept the reference and set aside the Order dated the (sic) February, 1961, of the learned trying Magistrate summoning the accused petitioners and quash the proceeding against them.
22. It is noted, at the express request of Mr. Sarwar Ali, who appeared for the complainant, opposite party, that, as during the pendency of the proceeding in this court the parties have again compromised their case, he was not opposing the reference.