Allahabad High Court
Shyamvir Singh And Others vs State Of U.P.And Another on 23 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:170343 Court No. - 92 Case :- APPLICATION U/S 482 No. - 32047 of 2008 Applicant :- Shyamvir Singh And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Brij Raj Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Vikrant Neeraj, learned counsel for the applicants and Shri Pankaj Srivastava, learned AGA for the State.
2. The instant application U/S 482 Cr.P.C has been filed seeking quashing of the Complaint Case No.24 of 2007, which is now registered as Special Session Trial No.77 of 2008 including the summoning order dated 1.09.2008, under sections 395, 427 IPC (Mohar Singh Vs. Shyamvir Singh and others) pending in the court of Special Judge (D.A.A), Etah/Additional Sessions Judge, Etah, Court No.7.
3. It is alleged by the applicant with regard to the same incident in the intervening night of 16/17.05.2005, the complainant herein earlier filed an application under section 156(3) Cr.P.C. which was registered as Case No.14 of 2005. In the said case, the matter was investigated by the police and final report was filed and final order was passed, against the said final order, the complainant opposite party no.2 herein filed a Protest Petition which was registered as Case No.95 of 2006, the said Protest Petition was dismissed by order dated 16.11.2006. After the dismissal of the said Protest Petition, the opposite party no.2 filed a complaint case making verbatim the same allegations with regard to the same date and against the same accused person, which was registered as Case Crime No.24 of 2007, in which after recording statements under sections 200 and 202 Cr.P.C, vide order dated 1.09.2008 the Special Judge, Etah has summoned the applicants herein.
4. Learned counsel for the applicants submits that since with regard to the same incident, the proceedings has attained finality in Case No.14 of 2005, therefore, the second complaint with regard to the same incident is not maintainable, therefore, the cognizance order dated 1.09.2008 is illegal and cannot be sustained in law.
5. Having regard to the facts and circumstances of the case, learned counsel for the applicants submits that since the allegation made in the earlier F.I.R as well as the complaint, the allegation are verbatim the same and the name of the accused persons are also same, therefore, the second complaint with regard to the same incident and to which a final report has already been filed and Protest Petition is dismissed, therefore, the second complaint is not maintainable.
6. Having regard to the aforesaid submission made by the learned counsel for the parties and the law laid down by the Apex Court in Poonam Chand Jain and another Vs. Fazru, reported in 2010(2)SCC 631, the following observation has been made:
"23. Almost similar questions came up for consideration before this Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar ? (AIR 1962 SC 876). The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. 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 (b) or on a misunderstanding of the nature of the complaint (c) or 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. This Court 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 paragraph 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 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, page 899)
24. This question again came up for consideration before this Court in Jatinder Singh and others vs. Ranjit Kaur ? (AIR 2001 SC 784). There also this Court by relying on the principle in Pramatha Nath (supra) held that there is no provision in the Code or in any other statute which debars 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 the 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. Saying so, the learned Judges held that the controversy has been settled by this Court in Pramatha Nath (supra) and quoted the observation of Justice Kapur in paragraph 48 of Pramatha Nath (supra):-
"......An order of dismissal under S. 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 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......"
25. Again in Mahesh Chand vs. B. Janardhan Reddy and another ? (2003) 1 SCC 734, a three Judge Bench of this Court considered this question in paragraph 19 at page 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 (supra) this Court relied on the ratio in Pramatha Nath (supra) 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 (supra) were reiterated.
26. Therefore, this Court holds that the ratio in Pramatha Nath (supra) is still holding the field. The same principle has been reiterated once again by this Court in Hiralal and others vs. State of U.P. & others ? AIR 2009 SC 2380. In paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand (supra) discussed hereabove.
27. 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 application 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 (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained."
7. In view of the aforesaid judgment of the Apex Court and the submissions made by the learned counsel for the parties, the instant complaint case, which is second complaint with regard to the same allegation, for which earlier F.I.R was registered and final report was filed, the Protest Petition was dismissed and the proceedings were concluded, therefore, second complaint is not maintainable. The learned Magistrate has erred in taking cognizance and summoning the applicants herein. Therefore, the order dated 1.09.2008 summoning the applicants and the entire criminal proceedings of the Complaint Case no.24 of 2007, which is now registered as S.S.T. No.77 of 2008, under sections 395, 427 IPC pending in the Court of Special Judge (D.D.A)Etah/ are hereby quashed.
8. The application is allowed accordingly.
Order Date :- 23.8.2023 SFH