Karnataka High Court
Sri Mahesh R vs Smt K Poornima on 19 July, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 25.06.2024 R
Pronounced on : 19.07.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No. 17 OF 2022
BETWEEN:
SRI MAHESH R.,
S/O LATE K.N.RAGHUNATH SINGH
AGED ABOUT 60 YEARS
RESIDING AT NO.6/1, 2ND MAIN
YADAVAGIRI, MYSURU - 570 020.
... PETITIONER
(BY SRI SRINIVASA D. C., ADVOCATE)
AND:
SMT. K.POORNIMA
W/O MAHESH R.,
AGED ABOUT 50 YEARS
RESIDING AT NO.4795/4A
SHIVAJI MAIN ROAD
MYSURU - 570 007.
... RESPONDENT
(BY SRI ARUN BHAT, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER OF COGNIZANCE OF THE
OFFENCE TAKEN BY THE HONBLE IV ADDITIONAL SENIOR CIVIL
2
JUDGE AND J.M.F.C., MYSURU IN C.C.NO.164/2021, DATED
25.05.2018 AGAINST THE PETITIONER / ACCUSED NO.1 UNDER
SEC.498A, 494, 506 R/W 34 OF IPC AND CONSEQUENTLY QUASH
THE ORDER PASSED BY THE HONBLE V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MYSURU IN CRL.RP.NO.170/2019 DATED
28.09.2021.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.06.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.164 of 2018 arising out of P.C.R.No.13 of 2016 filed by the respondent under Section 200 of the CrPC alleging offences under Sections 498A, 494, 506 r/w 34 of the IPC.
2. Heard Sri D. C. Srinivasa, learned counsel appearing for the petitioner and Sri Arun Bhat, learned counsel appearing for the respondent.
3. Facts, in brief, germane are as follows:-
The respondent is the complainant, the wife of the petitioner, accused No.1. The two get married on 18-11-1991. From the wedlock, a daughter is born. On 30-09-1992 the wife alleges 3 harassment on demand of dowry and also alleges that she was pushed out of the matrimonial house and since then the couple have been living separately. The husband files a petition before the Family Court in M.C.No.104 of 1992 seeking annulment of marriage. In the year 1998, M.C.No.104 of 1992 comes to be re-
numbered as M.C.No.2 of 1998 and on merits it comes to be dismissed. Thereafter, two petitions emerge one for restitution of conjugal rights and the other for maintenance by the wife. She also places on record that the husband has allegedly married for the second time during the subsistence of the first marriage. Several proceedings go on against each other.
4. On 03-12-2005, the wife files a private complaint before the JMFC, Nanjangud alleging that the husband has got married during the subsistence of the first marriage with her and also has threatened her to withdraw the case. The concerned Court, on 16-01-2006, takes cognizance of the offences under Sections 114, 494 and 506 r/w 34 of the IPC and registers C.C.No.52 of 2006.
The order of taking cognizance was challenged by filing a revision before the higher fora and on technical ground of the complainant 4 not being examined, the cognizance was held to be illegal and the matter was remitted back to the hands of the learned Magistrate.
Again on 20-05-2009, by a reasoned order, cognizance is taken for the very same offence. This time it is challenged before this Court in Criminal Petition No.6267 of 2009 by the petitioner/husband. On 20-02-2015 the respondent filed a Memo seeking to withdraw C.C.No.695 of 2009 to present it before the Court at Mysore, since she was residing in Mysore. A memo of withdrawal of the petition is answered and the complainant was permitted to withdraw it, for presentation before proper Court, in terms of the order of the learned Magistrate dated 20-11-2015. It is then the private complaint is registered in Mysore Court, in which cognizance is taken and a criminal case is registered in C.C.No.164 of 2018. The cognizance order varies from the earlier proceedings by addition of offence under Section 498A of the IPC. The husband files a criminal revision petition in Crl.R.P.No. 170 of 2019 before the Court of Sessions, Mysore against the order taking cognizance. This came to be rejected by the impugned order dated 28-09-2021. Aggrieved by the said order, the petitioner is before this Court in the subject petition.
55. The learned counsel appearing for the petitioner would contend that withdrawal of the case amounts to acquittal of the accused under Section 257 of the CrPC. Power to transfer is only vested with the Court of Sessions under Section 408 of the CrPC.
On the merit of the matter, he would contend that, there is no evidence of second marriage whatsoever and the husband and the wife are living separately for the last 32 years. The order of taking cognizance for the second time on the very same complaint violates Section 190 of the CrPC and seeks quashment of the order of taking cognizance.
6. The learned counsel appearing for the respondent would seek to defend the order of taking cognizance and transfer of the petition.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are all a matter of record. The trial is yet to commence. Cognizance is taken by the concerned 6 Court by the impugned proceedings. The contention is that the complaint being withdrawn would amount to acquittal of the accused. It is this that is necessary to be considered. Section 257 of the Cr.P.C., reads as follows:
"257. Withdrawal of complaint.--If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn."
(Emphasis supplied) It deals with withdrawal of complaint. It observes that if a complainant at any time before the final order is passed in a summons case satisfies the Magistrate that there are sufficient grounds to permit withdrawal, such withdrawal would amount to acquittal of the accused. Section 257 of the Cr.P.C., comes under Chapter-XX which deals with trial of summons cases by the Magistrate. This provision would apply, where the maximum punishment of imprisonment is up to 2 years and not warrant cases. The offences alleged in the complaint are all offences which are punishable beyond two years and therefore, they are not 7 summons cases. The offence of bigamy and Section 498A of the IPC both of which would attract punishment up to 3 years of imprisonment, if proved. Therefore, it is of no consequence or beneficial to the husband to contend that he gets acquitted once the complaint is withdrawn.
9. The question that needs an answer is, whether the Court had jurisdiction to entertain the complaint. The learned Magistrate, at the outset, ought not to have entertained the complaint at Nanjangud. It is settled principle of law that any amount of consent cannot confer jurisdiction on a Court that it does not have, territorial or otherwise. If the Court erroneously has taken cognizance of an offence in a case which does not fall within its territorial jurisdiction, the victim cannot be put to jeopardy.
Therefore, realizing that the Court did not have jurisdiction, it permits withdrawal of the complaint. The order on the memo for withdrawal reads as follows:
"Accused No. 1 and 2 absent. EP filed and allowed.
Dated 20-02-2015 the complainant counsel filed case. And also stated that the complainant is staying in Mysore and accused also working at Mysore. Hence, this court has no jurisdiction to try the case.8
On perusal of the records, it reveals that the complainant has filed private complaint against the accused for the offence punishable under Section 494, 506, 114 R/w 34 IPC.
Since this is private complaint and both parties are residing at Mysore. It is just and necessary to permit the complainant to withdraw the suit and to file it before the proper Court. Hence, the complaint is dismissed as withdrawn."
(Emphasis added) The Court observes that since both the parties are residing at Mysore, it is just and necessary to permit the complainant to withdraw the complaint and file it before the appropriate Court. It was dismissed as withdrawn. The husband wants to take advantage of the said circumstance, on the score that he has been acquitted.
It is a figment of his imagination.
10. The High Court of Delhi faced with identical circumstance has considered in the case of SATISH DAYAL MATHUR v. M/s.
MACKINNON MACKENZIE AND COMPANY1 and held as follows:
".... .... ....
7. Section 257 lays down the circumstances under which a complaint may be withdrawn with the consent of the Court in a summons case. It requires that (1) the complaint makes a request to the court for withdrawal of the complaint at any time before final order is passed in 1 1986 SCC OnLine Del. 128 9 the case, and (2) he satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused. The Magistrate may, if so satisfied permit him to withdraw the same. The said Section further enjoins that on the permission being granted by the Magistrate to the withdrawal of the complaint he shall acquit the accused against whom the complaint is so withdrawn. On a bare reading of this Section, therefore, it is manifest that a complainant has no legal or vested right to withdraw a complaint just and when he wishes. Withdrawal of the complaint under this Section is permissible only if the Magistrate is satisfied that there are sufficient grounds for permitting such withdrawal. This clearly implies that the Magistrate must apply his judicial mind to the reasons which impel the complaint to withdraw the complaint before granting permission. As stated above, the reason assigned by the respondent-complainant in his application dated 5th August 1983 was that the proceedings were vitiated by the flaw of non-examination of the complainant by the Magistrate as required under Section 200 of the Code before issuing the process and he wanted to withdraw the complaint in order to remove the said defect. This ground obviously prevailed with the learned Magistrate when he allowed the withdrawal. He has characterised the order dated 7th December, 1982 vide which the petitioner was summoned by the Magistrate without examining the complainant under Section 200 of the Code as totally invalid. Adverting to some reported decisions including a decision of this Court in Major (Dr.) B.S. Vohra v. Risan Singh, 1973 RLR 364 (1) he has observed that non-examination of the complainant under Section 200 of the Code is an illegality which goes to the root and vitiates the trial. So, he has reiterated that the ground disclosed in the application for withdrawal was sufficient for permitting the complainant to withdraw the complaint.
8. Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Manifestly the Section is mandatory and the requirement as to the examination of the complainant and his 10 witnesses, if any, present in court, should be strictly complied with. It is for the simple reason that the Magistrate must verify facts alleged in the complaint before he proceeds further in the matter either under Section 202 or 203 or 204 of the Code. He has to judicially determine whether a case is made out for issuing process. However, the question would arise whether non-compliance with the said provision would vitiate the subsequent proceedings/trial of the accused or whether it would be merely an irregularity curable under Section 465 of the Code. Section 460 to 464 deal with particular kinds of irregularities and their effect on proceedings. Section 465, however, is residuary. It provides that subject to those provisions no omission, error or irregularity in any proceeding will entail a reversal or alteration in appeal or revision of any finding, sentence or order, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. Obviously this Section is based on the principle that mere technicalities in respect of matters which are not of vital or important significance in a criminal trial should not be allowed to frustrate the ends of justice. Non-compliance with the provisions of Section 200 will only be a procedural lapse which can hardly be exaggerated into jurisdictional infirmity. Surely where a complaint is dismissed by a Magistrate without examining the complainant the complainant or his witnesses as required by Section 200 the complainant may have a legitimate grievance that he was not afforded an opportunity to substantiate his allegations at least ex-facie. Likewise, if an accused is summoned without examining the complainant he may challenge the summoning order on the ground that there was no verification of the complaint, unless, of course, the complainant happens to be a public servant, and as such no prima facie case for summoning was made out. Of course, he must question the legality of the order at the threshold. However, once the trial commences and culminates in the conviction or acquittal of the accused, it is not understandable how can he claim to have been prejudiced by nonwise, it is not intelligible how the complainant can be prejudiced by such an omission. Of course, I do not rule out exceptional cases in which either the complainant or the accused may, having regard to the peculiar facts of a case, raise the plea of prejudice. In re: T. Subramania Achari, AIR 1955 Madras 129, (2) a learned Single Judge examined the point in issue threadbare. He adverted to a long catena of authorities 11 both for find against the view taken above. Eventually he arrived at the following conclusion:
"The net result of this analysis is that what has to be considered in each case is whether the illegality or irregularity complained of affected the competency of the court or whether it had occasioned or must be taken to have occasioned a failure of justice. To quote Dr. Nandlal. The Code of Criminal Procedure, Vol. II Kishen Lal & Co., Lahore (1936) the test is:
Does the error go to the whole root of trial? Does it in effect vitiate the proceedings? Has the court assumed an authority which it did not possess? Has it broken the vital rules of procedure? If the error is of such a nature then the proceedings are vitiated in their very inception and the Section 537 has no application; but the mere fact that a certain provision of the code is imperatives does not itself indicate that on breach of the provision vitiates the whole proceedings:--
'Bechu Chaube v. Emperor', AIR 1923 All 81."
9. I am in respectful agreement with the view expressed by the learned Judge. Reference in this context may also be made with advantage to Bharat Kishore Lal Singh Deo v. Judhistir Modak, AIR 1929 Patna 473 (FB), (3) Mehr Chiragh Din v. The Crown, AIR 1924 Lahore 258 (4), Ambayara Goundan v. Pachamuthu Goundan, AIR 1924 Madras 587 (1), (5) and V.M. Abdul Rahman v. King-Emperor, AIR 1927 PC 044 (6). The latter authority is important for the proposition that non-compliance even with a mandatory provision of law would not by itself constitute an illegality vitiating the trial and conviction of the accused.
10. Looked at the matter from this angle there was no sufficient ground for granting permission to withdraw the complaint. However, the fact remains that the learned Magistrate took the view that the trial was vitiated by a serious irregularity which went to the roof of the matter and was not curable. Naturally finding himself in such a situation he could hardly think of acquitting the accused. Obviously he felt powerless to do so because an order of acquittal can be made only by a competent court and in a lawful trial. Thus by taking the foregoing view the learned Magistrate inhibited himself from passing an 12 order of acquittal as required by provisions of Section
257. In other words, his mind was all the time operating in a different groove, namely, that the case was not one falling under Section 257 of the Code and the only course open to him was to let the complainant withdraw the complaint and file a fresh complaint so that the provisions of Section 200 were duly complied with. Apparently he was very much obsessed with this thought that he did not even think it necessary to issue notice of the application to the accused. No doubt, a Magistrate can always grant permission to the complainant to withdraw the complaint but in that event he must pass an order of acquittal as laid down in Section 257. (See Cricket Association of Bengal v. The State of West Bengal, (1971) 3 SCC 239 : AIR 1971 S.C. 1925). So even if no notice of the request made for withdrawal is given to the accused the latter cannot complain of having been prejudiced because he is benefited by an order of acquittal. However, that cannot be said of a case where a complainant is permitted not only to withdraw the complaint in the absence of the accused but is also granted permission to file a fresh complaint. Such an order will be evidently prejudicial to the accused as he has to face a fresh trial for no fault of his. Further such an order will naturally enable the complainant to remove any defect or flaw which may exist in the original complaint or the allegations contained therein.
11. The crucial point, however, is that for the applicability of the rule of autrefois acquit embodied in Section 300 of the Code, three essential conditions have to be satisfied, viz. (1) there must have been a trial of the accused for the offence charged against him (2) the trial must have been by a court of competent jurisdiction, and (3) there must have been a Judgment or order of acquittal. It is only when these three conditions are satisfied that a subsequent trial of the accused can be successfully resisted by him on the principle of autrefois acquit. Indisputedly the petitioner has not been tried for the offence alleged to have been committed by him. However, the bar contained in Section 300 of the Code is sought to be invoked on the ground of "deemed acquittal" in view of the mandatory language of Section 257. It may be pertinent to notice in this context that the explanation to Section 300 expressly provides 13 that dismissal of a complaint discharge of an accused is not an acquittal for the purposes of that Section. It is for the simple reason that dismissal of a complaint is not at par with the finding of acquittal on a regular trial. In certain circumstances, therefore, a fresh petition or complaint for the same offence is entertainable. For instance, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 S.C. 876 (8), it was held that:
"An order of dismissal under Section 203 of the Code, is 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...."
12. Adverting to this decision it was observed by the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57 : AIR 1977 S.C. 2432 (9), which too was a case of dismissal of complaint under Section 203 of the Code that a second complaint can lie only on new facts or even on previous facts only if a special case is made out. However, these authorities are of no help to the respondent inasmuch as the instant is not a case of dismissal of the complaint at the pre-trial stage and the permission was granted when the trial of the petitioner had in fact commenced. So, the only point in issue is whether the petitioner would be deemed to have been acquitted in view of the mandatory language even though no such order was passed in terms of the learned Magistrate.
13. In Dhanapati Devi v. The Corporation of Calcutta, AIR 1952 Calcutta 467 (10), the petitioner was prosecuted for erecting an unauthorised structure which constitutes an offence under Section 493 of the Calcutta Municipal Act. It was held that a proceeding under Section 363 of the said Act could not be treated as a criminal proceeding in regard to such an offence and Section 248 of the old Code (corresponding to Section 257 of the new Code) could have no application. Consequently, Section 403 of the old Code which too spoke of conviction or acquittal of an offence had also no application to proceedings under Section 363 of the said Act. Hence, withdrawal of proceedings under Section 363 did not amount to "acquittal" and fresh proceedings were not barred. The learned Judges further observed that:
14"even assuming Section 248, applied, the petitioner could not claim any immunity from the second proceeding in the present case, inasmuch as no order of acquittal was actually passed on the previous occasion. It is clear from the terms in which Section 248 is expressed that the withdrawal of the complaint does not by itself operate as an acquittal but an order of acquittal by the Magistrate is further necessary. It is true that the section directs that the Magistrate shall acquit the accused but if the Magistrate does not actually do so, one of the essential facts necessary for attracting the operation of the section is lacking."
14. In Sushil Kumar Hazra v. Banka Mahato, AIR 1957 Calcutta 393 (11), on receipt of a complaint the Magistrate directed the police to make an investigation under the provisions of Section 156(3) of the old Code. The police held an investigation and submitted a final report. Immediately after the submission of the final report the complainant submitted a naraji petition and the learned Magistrate without examining naraji directed that a judicial enquiry be held into the complaint. Some evidence was taken at the enquiry and eventually the petitioners, who were the persons accused of the offence, were summoned and put on trial. The trying Magistrate discharged them on the ground that there had been a defect in the proceedings, in that the examination of the complainant had not been made before issuing the process. Thus, there was infringement of the mandatory provisions of Section 200. Realising this position the learned Magistrate held that the proceedings had no foundation in law. So without referring to the merits of the matter he made an order of discharge. Thereupon, a fresh complaint was filed before the Sub-Divisional Magistrate on identical facts. Under these circumstances, it was urged that the second trial of the petitioners for the same offence was barred under Section 403 of the old Code. This contention was repelled by the learned Judge who observed as under:
"When the Naraji petition was filed, it was clearly the duty of the Magistrate to treat it as a complaint, and to proceed straightway to the examination of the complainant under Section 200 of the Code of Criminal Procedure. Instead of doing that the learned Magistrate directed a judicial enquiry to be held. At this enquiry some evidence was taken, and a report followed on receipt of which the Magistrate directed the issue of 15 process against the petitioners. Clearly this involved infringement of the mandatory provisions of the law inasmuch as the Magistrate had failed to examine the complainant on oath in accordance with the provisions of S. 200 of the Code of Criminal Procedure. This position was realised by the previous Magistrate who dealt with this matter and he accordingly 'discharged' the accused from the proceedings obviously on the ground that they had no legal origin. I do not think that the Magistrate acted improperly in making the order of discharge in this case, although technically it could not be said to be an order under Section 253 of the Code of Criminal Procedure."
15. No doubt, the aforesaid observations were made in a warrant case and the order was of discharge under Section 253 of the old Code. But, the ratio of the decision will squarely apply to the instant case. As seen above, the learned Additional Chief Metropolitan Magistrate could not have acquitted the petitioner after having arrived at the conclusion that the cognizance of the offence leading to the issue of process to the petitioner to face trial was without any legal foundation and as such void ab initio.
16. The ratio of the aforesaid decisions finds ample support from the decision of the Supreme Court in Mohammad Safi v. The State of West Bengal, AIR 1966 69 (12). In that case the accused was tried on the previous occasion by a special court on the basis of a charge-sheet submitted by the police under Section 409, Penal Code, 1860. After the conclusion of the trial the special court acquitted him not on merits but on the erroneous conclusion that the court had no jurisdiction to take cognizance of the offence on the police challan and, therefore, the whole proceeding was without jurisdiction. Thereafter, a formal complaint was preferred by the public prosecutor as required by law and the Special Judge took cognizance of the offence and commenced a fresh proceeding against the accused. Plea of autrefois acquit was pressed into service by the accused on bosis of the previous acquittal but the same was repelled by the High Court. In appeal by certificate, the Supreme Court upheld the view taken by the High Court. The following observations of the Supreme Court are very pertinent to note:
"In the case before us Mr. Ganguly took the view, though erroneously, that as one of the conditions requisite for taking cognizance of the offence was not satisfied he had no jurisdiction over the matter. Having come to that conclusion he 16 had no option but to put a stop to those proceedings. It appears, however, that he felt that having already framed a charge the only manner in which he could put an end to the proceedings was by making an order of acquittal. It requires, however, no argument to say that only a Court which is competent to initiate proceedings or to carry them on can properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent trial upon the same facts and for the same offence."
.... .... ....
17. These observations in my view are very apposite in the facts of the case on hand. Since the learned Additional Chief Metropolitan Magistrate was of the view, though erroneously, that the entire proceedings were illegal because of non-compliance with the mandatory provisions of Section 200, he could not have in all fairness to him passed an order of acquittal in terms of Section 257 the Code and this is what he precisely did. So applying the ratio of the decisions adverted to above which has also been referred to by both the courts below, the order dated 5th August 1983 of the learned Additional Chief Metropolitan Magistrate in the previous complaint cannot operate as an acquittal within the meaning of Section 257 so as to bar subsequent prosecution of the petitioner on the same facts. It, however, bears repetition that the learned Additional Chief Metropolitan Magistrate was not competent to permit the complainant to file a fresh complaint on the same cause of action. Reference in this context may be made with advantage to G.K. Mazumdar v. Mohmad Kasam Mirza, 1967 Cri. L.J. 60 (13) and Kashi Prasad v. Emperor, AIR 1947 Allahabad 370 (14). In the latter case the Magistrate had returned the complaint to the complainant, viz. Inspecting Assistant Commissioner of Income-tax. It was held by a Division Bench of Allahabad High Court that:
"The order of the Magistrate for the return of the complaint was an order not contemplated by the Criminal Procedure Code. The Court has no jurisdiction to return the complaint. The order was, therefore, an invalid order and, as such, can have no effect."17
18. To sum up, therefore, there can be no shadow of doubt that the order made by the learned Additional Chief Metropolitan Magistrate on 5th August 1983 in the previous complaint was not warranted by law and as such it cannot be said to be an order of acquittal as contemplated in Section 257 of the Code. Indeed the prosecution evidence had yet to start and no objection whatsoever seems to have been taken by the accused i.e. the petitioner to the legality of the trial, Hence, it cannot be deemed to be an acquittal by legal fiction so as to operate as a bar to a subsequent prosecution."
(Emphasis supplied) Following the said judgment, the High Court of Delhi again in the case of ARVIND KEJRIWAL v. STATE2, has held as follows:
".... .... ....
25. It was argued on behalf of the petitioner that respondent no. 2 had earlier withdrawn a complaint which he had filed against three accused persons in Saket Courts, Delhi with the liberty to approach appropriate Court, and in these circumstances, Section 257 of Cr. P.C. would come into picture which provides that if a complainant withdraws his complaint against an accused, the Magistrate may permit him to do so, thereby acquitting the accused. While opposing these arguments, it was contended on behalf of respondent no. 2 that the previous complaint qua the present petitioner, who was accused no. 3 therein, was withdrawn with liberty to file a fresh in the Court having competent jurisdiction to deal with cases pertaining to MPs/MLAs and the same would not amount to an acquittal. In this regard, learned counsel for respondent no. 2 had relied on the decision of this Court in case of Satish Dayal Mathur (supra), wherein it was held as under:
22024 SCC OnLine Del 719 18 "17. These observations in my view are very apposite in the facts of the case on hand. Since the learned Additional Chief Metropolitan Magistrate was of the view, though erroneously, that the entire proceedings were illegal because of noncompliance with the mandatory provisions of Section 200, he could not have in all fairness to him passed an order of acquittal in terms of Section 257 the Code and this is what he precisely did. So applying the ratio of the decisions adverted to above which has also been referred to by both the courts below, the order dated 5th August 1983 of the learned Additional Chief Metropolitan Magistrate in the previous complaint cannot operate as an acquittal within the meaning of Section 257 so as to bar subsequent prosecution of the petitioner on the same facts."
26. This Court notes that in the present case, the respondent no. 2 herein had filed a complaint i.e. Ct. Cases 5786/2018, titled 'Vikas Sankritayan @ Vikas Pandey v. Dhruv Rathee' on 04.07.2018 for offence under Section 499/500 of IPC against three accused persons i.e. Sh. Dhruv Rathee (the original author), one Sh. Mahavir Prasad Khileri and Sh. Arvind Kejriwal i.e. the petitioner herein. On 18.10.2018, the complainant had tendered his pre-summoning evidence, and on the same date, he had also given a statement before the learned MM-01, South-East, Saket Court, Delhi that he wishes to withdraw his complaint against accused no. 3 with liberty to file afresh before the court of competent jurisdiction. This statement reads as under:
"On SA I wish to withdraw my complaint against alleged No. 3 Sh. Arvind Kejriwal with liberty to file the same before the Court of competent jurisdiction. I may be permitted for the same.
RO & AC"
27. Further, on the same day, the following order was passed by the learned Magistrate:
"Complainant submits that he wishes to withdraw his complaint qua alleged No. 3 Sh. Arvind Kejriwal with liberty to file fresh complaint as per law in the court having competent jurisdiction. Statement of the complainant is separately 19 recorded to this effect and name of alleged No. 3 is dropped accordingly.
Complainant is examined as CW1 and discharged.
Complainant seeks time to file the list of remaining witnesses and for further pre summoning evidence. Heard. Allowed.
Be put up for further pre summoning..."
28. Thereafter, in the aforesaid complaint case, the learned Magistrate had issued summons to the other two accused persons vide order dated 23.07.2019.
29. It is, thus, noted that in the present case, the respondent no. 2 had withdrawn his earlier complaint i.e. Ct. Cases 5786/2018, only qua accused no. 3, purely on the grounds of lack of jurisdiction of the learned Magistrate in Saket Courts to adjudicate a case related to a sitting MLA, who is also the Chief Minister of Delhi. In this regard, this Court also takes note of the fact that pursuant to directions passed by the Hon'ble Apex Court in case of Ashvini Kumar Upadhyay v. Union of India W.P. (C) 699/2016, a notification no. 35/DHC/Gaz./G- 1/VI.E.2(a)/ 2018 dated 23.02.2018 was issued by this Court constituting special Courts to deal with cases against sitting/former MPs/MLAs.
30. As regards the argument regarding applicability of Section 257 of Cr. P.C., it is important to note that the case i.e. Ct. Cases 5786/2018, at the time when complaint qua petitioner herein was withdrawn, was still at the stage of recording of pre-summoning evidence. The petitioner i.e. accused was not before the Court concerned, as he had not yet been summoned, and the learned Magistrate had not applied his mind even to the material before him to arrive at a finding as to whether the accused persons were required to be summoned or not. Thus, the trial in that complaint case had not yet begun, when the complaint was withdrawn. Having also gone through the decision of this Court in case of Satish Dayal Mathur (supra), this Court is of the opinion the 20 learned MM-01, South-East, Saket Court, Delhi did not have the jurisdiction to adjudicate complaint case pertaining to the present petitioner, in view of Special Courts constituted by this Court for the purpose of dealing with cases pertaining to sitting/former MPs/MLAs. In view thereof, the learned Magistrate himself did not pass any order of acquittal of the accused no. 3 i.e. petitioner herein. Thus, this Court is of the opinion that such a case would not be covered within the provisions of Section 257 of Cr. P.C., which falls under Chapter XX i.e. 'Trial of Summons-Cases By Magistrates'. Even otherwise, as observed hereinabove, the case of the complainant qua the present petitioner, being a sitting MLA, could not have been dealt with by the Magistrate concerned."
(Emphasis supplied) In both these judgments, the High Court of Delhi considers the purport of Section 257 of the Cr.P.C., and holds withdrawal of complaint to be presented before an appropriate Court cannot be said that it is an order of acquittal. In the case of SATISH DAYAL MATHUR, it observes that the prosecution evidence was yet to start and no objection was taken by the complainant therein and further holds that there cannot be a deemed acquittal by legal fiction, so as to operate as a bar to subsequent prosecution. The same is reiterated in the case of ARVIND KEJRIWAL also, where the complaint had to be preferred before the Special Court, but had been preferred before the Court of Magistrate. It was permitted to 21 be withdrawn for being presented before the Special Court concerning MP and MLAs, since it was a case where the Magistrate did not have jurisdiction. I am in complete agreement with the dicta laid down by the High Court of Delhi. On the same analogy, no fault can be found in the case at hand, with the impugned order, permitting withdrawal of the complaint on the question of jurisdiction, to be presented before the appropriate Court.
11. For the aforesaid reasons, finding no merit in the petition, petition stands dismissed.
Interim order of any kind operating shall stand dissolved.
Sd/-
JUDGE bkp CT:SS