Basudeo and Others vs State of U.P. and Another

R.K. Shukla, J.—By this application u/s 482 Code of Criminal Procedure, 9 applicants have prayed for quashing the complaint filed by opposite party No. 2 and order dated 11th January, 1982 of the Chief Judicial Magistrate, Kanpur summoning the applicants for an offence u/s 307 IPC on that complaint pending in the court of Chief Judicial Magistrate, Kanpur Case No. 1225 of 1981, Tulsi Ram v. Basdeo and Ors. Case No. 1225 of 1981 He has farther prayed for quashing the order of Sessions Judge dated 18th September, 1982 dismissing the revision filed against that order.

Brief facts of the case are that there was an occurrence in village Pachhalhar and first information report was lodged by Basdeo applicant. A cross first information report was also lodged, by Tulsi Ram, opposite party No. 2, against 7 persons at police station Bhugnipur and a case was registered as crime No. 111-A of 1981 u/s 307 IPC. After investigation, the police submitted a final report in this cross first information report which was placed before the Chief Judicial Magistrate Kanpur, on which the complainant Tulsi Ram appeared and filed a protest petition accompanied by three affidavits of the witnesses. The Chief Judicial Magistrate perused the case diary and summoned 8 persons u/s 307 IPC vide his order dated 24-9-1981. However, that final report was accepted so far as 9 applicants are concerned. An application was also moved on 24th September, 1981 by Tulsi Ram, opposite party No. 2 which was rejected by the Chief Judicial Magistrate on 5th October, 1981.

Lateron Tulsi Ram, opposite party No. 2 filed a complaint in the court of the Chief Judicial Magistrate, Kanpur on which Case No. 1225 of 1981 under Sections 147, 148, 149 and 307 IPC was registered. After examining the complainant opposite party No. 2 on oath and ten witnesses, the Chief Judicial Magistrate vide his order dated 11th January, 1982 summoned ail the nine applicants u/s 307 IPC for 3-2-1982. Thereafter a revision was preferred by only one applicant, Basdeo against the aforesaid order dated 11th January, 1982 summoning the applicants. The II Additional Sessions Judge Kanpur has dismissed the said revision by his order dated 18th September, 1982 which is Annexure III to this application. Now 9 applicants have filed this petition u/s 482 Code of Criminal Procedure for quashing the complaint and aforesaid orders of the Magistrate and Sessions Judge.

The learned Counsel for the applicants contended that the protest petition was filed before the Magistrate who had applied his mind on the final report submitted by the police, and refused to summon the applicants after perusing the case diary, affidavit and protest petition. He also contended that the application dated 24th September 1981 moved by opposite party No. 2 on the same day, was also rejected by the Magistrate. According to him, the order dated 24th September, 19S1 was a judicial order, by which he only summoned 8 persons and did not summon the applicants. It was not open to the Magistrate to entertain the complaint on the same matter. In support of his contention, he relied on four cases Ramgiri v. Ravi Saran Singh 1935 CriLJ 1035, Begam Rai v. The State 1952 CriLJ 473 & Nirmal Singh Vs. The State of Uttar Pradesh and Others, .

On the other hand, counsel for the opposite party urged that the Magistrate has not treated the protest petition as a complaint, and, therefore, the argument of the other side has no force. In the alternative, he contended that even if the protest petition is treated to be a complaint, the second complaint is not barred on some additional facts. He has pointed out that after taking the cognizance of the complaint u/s 190(1)(a) Code of Criminal Procedure, the Magistrate has examined ten witnesses and thereafter he has summoned the applicants. There is nothing wrong in the procedure adopted by the Magistrate and this application deserves dismissal. In support of his submission, he has relied upon the following cases: Roop Chand v. State of Bihar AIR 1968 SC 117 at 124; Hareram Satpathy Vs. Tikaram Agarwala and Others, ; R.R. Chari Vs. The State of Uttar Pradesh, ; Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, and H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), .

None of the parties has annexed the protest petition along with the affidavit, therefore, it cannot be said whether the protest petition fulfilled the ingredients of ''complaint'' defend u/s 2(d) of the Code of Criminal Procedure, 1973. The Magistrate cannot act upon the protest petition u/s 190(1)(a) unless it amounts to a complaint within the meaning of Section 2(d) of the Code.

Even assuming that the protest petition filed in the instant case fulfilled the requirement of the definition of word ''complaint'' under the Code of Criminal Procedure and the Magistrate applied his mind to the contents of the petition, it cannot be said that he has taken cognizance u/s 190(1)(a) Code of Criminal Procedure. For this he must not only have applied his mind to the contents of the protest petition but he must have done so for the purpose of proceedings, in a particular way as indicated in the subsequent provisions of Chapter XV. This view finds full support from the decision of the Supreme Court in the case of R.R. Chari Vs. The State of Uttar Pradesh, in which the view of Calcutta High Court has been upheld in the following words:

What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear however that before it can be said any Magistrate has taken cognizance of any offence u/s 190(1)(a) Code of Criminal Procedure he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceedings, in a particular way as indicated in the subsequent provisions of this Chapter proceedings u/s 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applied his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g. ordering investigation.... u/s 156(3) of issuing search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.

From the facts and circumstances of the present case, it is quite clear that the Magistrate has never treated the protest petition as a complaint, therefore, the subsequent cognizance u/s 190(A) on the proper complaint filed by opposite party No. 2 after examining the complainant and ten witnesses under Sections 200 and 202 Code of Criminal Procedure cannot be said to be illegal. It is clear from the order dated 11-1-1982 of the Magistrate that he was satisfied after seeing the complaint and the evidence adduced u/s 200/202 Code of Criminal Procedure that the gun was fired by one of the present applicants and the said gun having been snatched by complainant was deposited with police. In view of such evidence adduced, the Magistrate was satisfied that sufficient grounds existed to proceed further against the applicants. Hence summonses were issued against all the applicants Nos. 1 to 9 u/s 307 IPC for 3-2-1982. No revision was filed against this order by applicants Nos. 2 to 9. Only applicant No. 1 Basdeo filed a revision before the learned Sessions Judge which has been rightly rejected by him. There is no abuse of the process of the court.

Even if the protest petition is treated as a complaint, the second complaint is not barred. The position of law is well settled by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, , which has been further followed in Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, in the following words:

An order of dismissal u/s 203, Code of Criminal Procedure, is however, no bar to the entertainment of a second complaint en 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.

As rightly commented by the Law Commission, the circumstances mentioned by the Court in the above passage cannot be exhausitive of all the circumstances when a second complaint can be entertained. A second complaint may be entertained in other appropriate cases too, though it should be for extraordinary reasons.

In para 4 of the counter affidavit of opposite party No. 2, it is alleged that although protest petition was filed but no proper opportunity was afforded to the complainant to explain the case and the said affidavit was not perused. From para 9 of the counter affidavit, it is also clear that on complaint now then witnesses have been examined and evidence is not the same. This evidence was not before the Magistrate when he took cognizance against the eight persons u/s 190(1)(b) on 24-9-1981. Under these circumstances even if it is treated the second complaint, it is not barred.

The case cited by the learned Counsel for the applicants are distinguishable on facts. Ramgiri''s case (supra) started on a regular complaint. It was a case of a civil nature in which the Magistrate himself made a local enquiry and was satisfied himself that the complaint was not true. Therefore, this High Court did not interfere in exercise of its revisional jurisdiction on the ground of technical irregularities in the procedure. It was a dispute of civil nature and, therefore, this High Court observed that the complainant can seek redress by way of damage in civil court. In the instant case the offence is u/s 307 IPC. So this case does not help the applicants.

So far as the case of Begam Rai (supra) is concerned, that was also a case of civil nature. In that case there was no regular complaint before the Magistrate. Therefore, further proceedings were quashed. In the instant case, there is a regular complaint and ten witnesses have been produced and thereafter the applicants have been summoned for an offence u/s 307 IPC. So far as the case of Nirmal Singh Vs. The State of Uttar Pradesh and Others, is concerned, there is no dispute regarding the legal proposition laid down, but in the case under consideration the Magistrate has not applied his mind for the purpose of taking cognizance u/s 190(1)(a). Therefore, this case is also not relevant to the point under consideration.

As I have held above that the Magistrate has never treated the protest petition as a complaint, therefore, subsequent complaint filed by opposite party No. 2 is not barred. In the subsequent complaint, ten witnesses have been examined. It cannot be said that the evidence is the same. Under the circumstances this application has no merit and deserves dismissal.

The application is accordingly dismissed. The stay order dated 4-10-1982 is vacated.