In Re: Ponnuswami Goundan and Another

The petitioners are two out of five persons who have been charge-sheeted by the Police before the Sub-Magistrate of Perundurai for offences

under Sections 419 and 467, Indian Penal Code and Section 82 of the Registration Act. A sale-deed had been presented for registration to the

Sub-Registrar of Kunnathur on 12th January this year. It purported to have been executed by one Kanni Moopan and by his mother on behalf of

his minor brother and was registered the next day. On 28th January Kanni Moopan complained to the Sub-Registrar that he had not executed the

deed and that there had been false personation. The Sub-Registrar forwarded his complaint to the District Registrar, who, on 2nd February,

directed the Sub-Registrar to advise Kanni Moopan to complain to a Magistrate. The next day, somewhat inconsistently, he sent a copy of the

Sub-Registrar''s letter and of the complaint to the Police Inspector at Erode, who on 4th or 5th ordered the case to be registered for investigation.

In the meantime, Kanni Moopan, in compliance with the advice given him on 2nd, had lodged a complaint before the Sub-divisional Magistrate,

Erode, who proceeded to dismiss it summarily, mainly on the surprising ground that the complainant knew nothing about the contents of the sale-

deed in question. As his complaint was that he had not signed the deed and that some one had personated him before the Sub-Registrar, his

ignorance of its contents was nothing more than was to be expected. On 22nd the Police put in their charge-sheet, which was taken on file by the

Sub-Magistrate of Perundurai. In May the case was adjourned at the request of the petitioners on the allegation that they were going to move the

High Court for a transfer. On 15th May they informed the Court that they had so moved. That was untrue. What they had done was to move the

High Court to quash the proceedings on the ground that the Sub-Magistrate had no jurisdiction to entertain the charge-sheet, the Sub-divisional

Magistrate''s order dismissing Kanni Moopan''s complaint not having been set aside. Jackson, J., referred the application to a Bench, which, in its

turn, referred it to Full Bench for decision of the following question:

Whether, a complaint having been dismissed by a Sub-divisional Magistrate u/s 203, Criminal Procedure Code, a Sub-Magistrate has jurisdiction

to entertain a charge-sheet founded on a subsequent complaint, the order of dismissal not having been set aside.

The leading case on the point, as far as this Court is concerned, is Emperor v. Chinna Kaliyappa Gounden ILR (1905) 29 M. 126 : 16 M.L.J.

79 That was, of course, a case in which a dismissed complaint was re-entertained by the same Magistrate as had dismissed it and the majority of

the Full Bench held that he had jurisdiction to do so. It had previously been decided in Mahomed Abdul Mennan v. Panduranga, Row ILR (1904)

28 M. 255 that a Magistrate had no power to entertain, a complaint that had already been dismissed by another Magistrate of co-ordinate

jurisdiction. In the case we are now considering the prior dismissal was by a Magistrate of superior jurisdiction, but that, in our opinion, makes no

difference in principle apart from the fact that, as far as the subject-matter of the particular complaint was concerned, their jurisdiction was co-

ordinate. A very considerable number of rulings has been cited before us, to most of which we consider it unnecessary to refer. What, in effect,

Mr. Jayarama Aiyar has pressed us to say is that the case, Emperor v. Chinna, Kaliyappa Gounden ILR (1905) 29 M. 126 : 16 M.L.J. 79 was

wrongly decided. We see no reason to do anything of the sort. It is curious, no doubt, that the Code, while empowering superior Courts to direct

further enquiry into complaints that have been dismissed u/s 203 which would seem to supply a complete and adequate remedy against improper

dismissal should, at the same time, allow a complainant and a Magistrate to dispense with that formality and permit the one to present and the other

to entertain a complaint on the same facts as a complaint that has already been presented and dismissed. But that is not our concern. We have to

interpret the Code as it stands and not in the light of any anomaly to which its wording may give rise. Something has been sought to be made out of

the difference between Section 147 of the Code of 1872 and Section 403 of the present Code. As to that, we are of opinion that the difference is

one merely of language and not of substance. Section 147 of the old Code provided that ""The dismissal of a complaint shall not prevent

subsequent proceedings"". There is no similar provision in the present Code and it is argued that the absence of such a provision leads to the

inference that the dismissal of a complaint is now a bar to further proceedings until it is set aside. That is not, in our opinion, the proper inference

from the language of Section 403. The section begins by laying down that a man who has been tried for an offence and convicted or acquitted of it

shall not be liable to be tried again for the same offence and it ends with the explanatin that the dismissal of a complaint is not an acquittal for the

purposes of the section. That, however, is not all; there is in regard to an acquittal a qualification which is not to be found in the explanation. It is

that an acquittal to be bar to a second trial must still remain in force. In regard to the dismissal of a complaint, it is not stated that the order of

dismissal is a bar until it is set aside. The only meaning we can put on the wording of the explanation is that an order dismissing a complaint is not

an acquittal, in the sense that it bars a further enquiry until it has been set aside. That being so, we must follow the ruling in Emperor v. Chinna

Kaliyappa Gonnden ILR (1905) 29 M. 126 which, in our opinion, really covers the present case. There is, it seems to us, no difference in principle

between the entertainment of a second complaint by the same or by a different Magistrate. That was pointed out by Sir Francis Maclean in Queen-

Empress v. Dolegobind Dass ILR (1900) 28 C. 211 whose opinion was"" approved by Phillips, J., in Pompalli Subba Reddi v. Chaduboyigari

Kamal Sail (1915) 7 Cr. L. Rev. 255.