Himachal Pradesh High Court
Dinesh Chander Sharma vs Harnam Singh on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 341 of 2017 Reserved on: 29112019 Date of Decision: Jan 3, 2020 .
Dinesh Chander Sharma ...Petitioner.
Versus
Harnam Singh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?
Petitioner in person.
For respondents No. 1 ,4, 5, 6 and 8 to 12 :Mr. Dheeraj K. Vashistha, Adv. For respondent No. 3. : Mr. Divya Raj Singh, Advocate.
For respondent No.13 : Dr. Lalit Kumar Sharma, Adv.
Anoop Chitkara, Judge Challenging the dismissal of Criminal Revision by the Court of Sessions, upholding the dismissal of the criminal complaint filed under Section 190 CrPC, without issuing the process, the complainant, who is an Advocate in practice, has come up before this Court for setting aside of the impugned verdicts, with a direction to the Judicial magistrate to proceed further in the complaint under Section 204 CrPC, and summon the accused for commission of the offences punishable under Sections 451, 365, 368, 149, 466, 469, 471, 474, 211, 220, 120B and 500 of IPC.
::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 22. The gist of the facts apposite to decide the present petition traces its history to a Criminal Complaint No. 63II, 2000, filed by the petitioner, under Section 190 of the Code of Criminal .
Procedure, 1973, after now called as CrPC, against the present accused, on Jun 1, 2000, in the Court of Chief Judicial Magistrate, Una, for the commission of offences punishable under Section 500 of IPC. After taking cognizance, the Judicial Magistrate, conducted an inquiry and recorded the preliminary evidence of the complainant, documentary examined evidence.
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reasoned order, the Judicial Magistrate did not find a prima facie case to proceed further under Section 204 of CrPC and dismissed the complainant under Section 203 of CrPC.
3. Challenging the said order of dismissal, the complainant filed a Criminal Revision Petition before Sessions Court, Una. Vide order dated Jun 23, 2006, passed in Criminal Revision Petition No.44/01RBT1/04, the learned Additional Sessions Judge (Fast Track Court), Una, HP did not find any infirmity in the impugned order and dismissed the Criminal Revision.
::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 34. The petitioner then challenged such judgments by filing a petition under Article 227 of the Constitution of India, read with Section 482 of CrPC, in this Court. Vide order dated Mar 14, .
2007, passed in Cr.MMO No. 127 of 2006, Hon'ble the Chief Justice of High Court of HP, dismissed the said petition and observed that no interference is called for in the impugned orders.
5. The complainant did not give up and filed a new complaint on Oct 4, 2007, under Section 190 (1)(a) of CrPC. This complaint was almost identical to the previous complaint, except the allegations of criminal conspiracy.
6. The order sheets of the Court reflect that the learned Additional Chief Judicial Magistrate, Una on Oct 8, 2007, ordered its registration, and the office registered it as complaint No. 238II
07. Vide order dated Mar 14, 2008, the Additional Chief Judicial Magistrate, Una took cognizance of the offence and asked the complainant to produce preliminary evidence. After that, in the inquiry, the Trial Court recorded the statements of the complainant and his witnesses, and also took on record the documentary evidence.
7. Vide order dated Apr 4, 2009, the Judicial Magistrate Ist Class, Court No.1, Una, District Una, HP, did not find the ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 4 evidence to proceed further under Section 204 of CrPC and dismissed this complaint under Section 203 of CrPC.
8. Challenging the said dismissal, the complainant filed a .
Criminal Revision before Sessions Court, Una. Vide order dated Feb 18, 2012, passed in Criminal Revision No. 19 of 2009, Sessions Judge, Una, dismiss the Criminal Revision petition.
9. Feeling aggrieved, challenging the order passed in Criminal Revision and order passed by the Judicial Magistrate, the petitioner has come up before this Court by filing the present petition under Article 227 of the Constitution of India read with Section 482 of CrPC, seeking setaside both these orders, with directions to the Judicial Magistrate to initiate process by issuing summons to the accused under Section 204 CrPC.
10. I have heard Petitioner, Mr. Dinesh Chander Sharma, who appeared in person, and counsel for respondents. I have also gone through the record, including the record of the previous case.
ANALYSIS AND REASONING:
11. In the previous complaint, i.e., 63II2000, the complainant had arraigned fifteen persons as accused, and in the Criminal Revision No. 19 of 2009, the complainant had arraigned 17 persons as accused. However, while filing the present Cr.MMO No. ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 5 341 of 2017 in this Court, the complainant did not arraign accused No.8 Shankar Dass, accused No. 9 Kewal Krishan, accused No. 10 Rattan Chand, and accused No. 16, Mahender Singh, as .
respondents. In a nutshell, without offering any reasons, the petitioner has arraigned 13 out of the 17 accused in the present case.
12. The explanation given by the complainant in the new complaint was that because, at the time of the filing of the initial complaint, he had not alleged the offences of criminal conspiracy and wrongful confinement, which came to his notice only during the recording of statement of accused No. 14, in a case, pending against the petitioner. Thus, he had acquired a new cause of action to file the present complaint.
13. It would be relevant to extract paragraph 4 of the complaint, wherein the petitioner has explained the reasons for filing the second complaint. The same is reproduced as follows:
"(4) That the complainant previously instituted complaint case No. 63II2000 Dinesh Chander Sharma Vs. Harnam Singh and others on the abovestated facts and circumstances excluding the facts establishing the offence of criminal conspiracy to abduct with intent to wrongfully ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 6 confine the complainant on the said date since the same came to the knowledge of the complainant from accused No.14 in the course of the latter's statement made on 15072004 and 30072004 .
during preliminary evidence concerning the former's another complaint case No. 56II2000 (Dinesh Chander Sharma Vs. K.K.Pant and others), i.e. far later than 15102001, i.e., when the said complaint case was erroneously dismissed by the Court of ACJM, Una. The complainant preferred Revision No. 44 of 01 RBT No.1/04 against the order of ACJM, Una, which the Fast Track Court, Una dismissed on 2306 2006 upholding erroneously the lower Court's order though specifically holding, the accused No.1's causing the complainant's arrest as illegal. He subsequently preferred petition under Article 227, Constitution of India read with Section 482, Cr.P.C. before Hon'ble High Court, Shimla vide Cr.
M.P No. 550/ 06 against the Fast Track Court, Una's said order which was erroneously upheld on 14032007. Hence this second complaint on afore stated facts and circumstances."
SCOPE OF SECOND COMPLAINT:
14. Undoubtedly the accused persons did not face any prosecution, and as such, Articles 20 (2) of the Constitution of India ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 7 does not come to their protection. However, the second complaint can be filed only in the exceptional circumstances, and that too, when the complainant offers reasonable justification to file the .
second complaint regarding the same incident and can satisfy the Court with the explanation.
15. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, the majority view of a threemember bench of Supreme Court, holds,
48. ...Under Section 203 Procedure Code the judgment which the Criminal Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply is mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously.
An order of dismissal under Section 203, 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 ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 8 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. ILR 12 Lahore 9 at p. 12;
Doraisami v. Subramania, AIR 1918 Madras
484. In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean C. J. in ILR 28 Calcutta 211 at p. 216, affirmed by a Full Bench in ILR 28 Calcutta 652 (FB). It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.
16. In Mahesh Chand v. B Janardhan Reddy, (2003) 1 SCC 734, a threemember bench of Supreme Court holds,
19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Sec. 204, Cr. P. C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 9 could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable .
diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not.
17. After the dismissal of the first complaint under Section 203 CrPC, the petitioner filed the second complaint, without offering any reasonable explanation.
18. After the dismissal of the first complaint under Section 203 CrPC, the second complaint is maintainable only when the complainant offers a trustworthy and reasonable explanation, which is acceptable to the Judicial Magistrate.
19. The Judicial Magistrate was not satisfied with the explanation offered in the second complaint. Consequently, the Judicial magistrate refused to proceed further under Section 204 CrPC. Vide order dated Apr 4, 2009, passed in complaint No. 138II 2007, the Judicial Magistrate Ist Class, Court No.1, Una, dismissed the complaint under Section 203 CrPC.
::: Downloaded on - 04/01/2020 20:27:42 :::HCHP 1020. Affirming the impugned order, the appellate court did not find any error in the impugned order of Judicial Magistrate and passed an order to the said effect in proceeding No. 19 of 2009.
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21. Given above, once a Court dismissed the complaint under Section 203 of CrPC, the complainant has legal rights to file the second complaint, but that is possible in exceptional circumstances, and only when the Court is satisfied with explanations averred therein.
22. In the present case, the complainant has miserably failed to satisfy the Court with the explanation given on his behalf.
I do not think that in the given facts and circumstances of the matter, the second complaint is maintainable.
23. I have gone through both the orders, as well as the complaint. I also scribe the same view and do not find any infirmity or illegality in the impugned orders.
24. Given the above, there is no merit in the present petition, and the same is dismissed. The pending applications, if any, stand closed.
(Anoop Chitkara) Judge.
Jan 3, 2020 (NK) ::: Downloaded on - 04/01/2020 20:27:42 :::HCHP