Ranjit Singh vs Raghbir Singh

K.K. Srivastava, J.

This is a petition filed under section 482 Cr.P.C. praying for the quashing of complaint, copy Annexure P4, summoning order, copy Annexure P5 and order dated 19.7.1997, copy Annexure P8, passed by the Judicial Magistrate Ist Class, Samrala, vide which the learned Magistrate held that there was no bar in entertaining the complaint in hand and dismissed the application dated 30.4.1997 filed by the petitioners Ranjit Singh and others. The respondent Raghbir Singh s/o Thakur Singh, resident of Machhiwara, PS Machhiwara, Tehsil Samrala, District Ludhiana filed a complaint before Sub Divisional Judicial Magistrate, Samrala on 14.12.1997, a copy of which has been placed on record as Annexure P1. This complaint was filed under Sections 467, 468, 471, 419, 420, 474, 506/120B IPC. According to the averments made in the complaint, the complainant Raghbir Singh owned a house and a plot situated in the Revenue Estate of MachhiwaraII, P.S. Machhiwara aforesaid. The boundaries of the plot and the residential house were set out in para 4 of the complaint as under :

North : House of Lachman Singh

South : Plot of Tarlok Singh and others

East : Rasta

West : Rasta

A site plan of the said property was also annexed with the complaint. A boundary wall was constructed by the complainant who alleged himself to be the owner in possession of the said property. The accused No. 1 Ranjit Singh, who is petitioner in this case allegedly started interfering in the possession of the complainant over the said house and plot which led to the filing of an application by the complainant before the Dy. Supdt. of Police, Samrala and SHO, Machhiwara who, however, did not take any action thereon. The accused petitioner Ranjit Singh filed a suit for mandatory injunction in the Civil Court praying for removal of the foundation and for issuance of permanent injunction restraining the respondent Ranjit Singh and his relative Mohan Singh from interfering in the disputed land. The said suit was pending on the date when the impugned complaint was filed. The accusedpetitioner Ranjit Singh placed reliance on a family settlement, dated 10.5.1988 in the civil suit which was alleged to be a forged and fictitious document. The complainant Raghbir Singh made a categorical assertion that the accused petitioner Ranjit Singh had no share in the house and nothing was given to the complainant, as per the alleged family settlement relied on by the petitioneraccused. The complainant, Raghbir Singh appeared before the Civil Court and filed his written statement and categorically denied his signatures on the alleged family settlement dated 10.5.1988. He took this plea that the accusedpetitioner, Raghbir Singh prepared a forged and fictitious document of family settlement to grab the house and the property of the complainant, Raghbir Singh. The accusedpetitioner Ranjit Singh threatened to take possession forcibly by illegal means and even threatened the complainant to cause him physical harm. It was alleged by Raghbir Singh, complainant that the petitioneraccused committed cognizable offences as aforesaid. This complaint dated 14.10.1992, Crl. Complaint No. 17/1 of 1992 was dismissed for want of prosecution by Sub Divisional Judicial Magistrate, Samrala on 20.5.1993, vide copy of the order filed as AnnexureP2. The complainantrespondent filed another complaint on 22.7.1993 in the Court of Sub Divisional Magistrate Samrala, vide copy Annexure P3 containing the same averments, which was also dismissed on 2.11.1993. This was followed by another complaint filed on 12.4.1994, copy Annexure P4, on the basis of which Judicial Magistrate Ist Class, Samrala passed the impugned order of summoning on 22.11.1996. The petitioners moved an application under Section 245(2) Cr.P.C. praying that they may be discharged from the said complaint case as the complainant had concealed the fact that two similar complaints had been filed and dismissed by that Court. The petitioner also moved an application under Section 294 Cr.P.C., calling upon the complainant to admit or deny the genuineness of the enclosed documents and compromise of Crl. Complaint No. 17 of 1992 and Crl. Complaint No. 29/1 of 1993 decided on 2.11.1993. These two applications came up for hearing before the learned Judicial Magistrate, Samrala on 19.7.1997 vide which it was held that the earlier complaints were dismissed in default or dismissed as withdrawn and they had not been dismissed on consideration of evidence on record and as such there was no bar in entertaining the complaints in hand. The other application moved by the petitioners was also dismissed under Section 294 Cr.P.C. The petitioners seek the quashing of the complaint, copy Annexure P4. Notice of motion was issued to the respondents, who put in appearance and contested the case. Vide order dated 6.8.1997 passed by Hon''ble S.C. Malte, J. further proceedings in the trial court were stayed.

Learned counsel for the petitioners relied on the judgment of this Court in Surjit Kaur and others v. State of Punjab and another, 1988(1) RCR(Crl.) 169 : 1988(2) C.L.R. 600 , wherein the filing of the second complaint and registration of the case based on that complaint was challenged. It was urged on behalf of the petitioner that when the first complaint was withdrawn and dismissed by the Magistrate, second complaint of the next day on the same facts and cause of action could not be entertained and as the second complaint was not competent, the consequent registration of the case is also not warranted by law. The learned Single Judge of this Court held : "It is not disputed that the first complaint was dismissed and the second complaint was filed on the same facts and cause of action. The learned counsel for respondent No. 2 has not been able to support the entertainment of the second complaint on the same facts and cause of action under any provision of law. The order of dismissal of the complaint passed by the Magistrate whether on the statement of the complainant or otherwise has the implication that the complaint was dismissed. A second complaint will not be competent." He cited the judgment of the Apex Court in Mohan Lal Ganguly v. Jayanarayan Chaudhury and another, 1969 CAR 53 (SC), wherein it was held that according to the majority decision in Prematha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp. (2) S.C.R. 297, the order of dismissal under Section 203 203 Cr.P.C. 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 misundertaking 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. In that case, however, it was found that the bringing of a fresh complaint was a course of abuse of the process of the court and was not with the object of fulfilling the interest of the justice.

In the instant case the first complaint dated 14.10.1992 was dismissed for want of prosecution as none responded on behalf of the complainant till 3.00 P.M. Section 249 Cr.P.C. deals with a situation where the complainant is absent on a date fixed for the hearing of the case. It provides as under :

"249 Absence of complainant : When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained at any time before the charge has been framed, discharged the accused."

In the instant case the offences involved in the complaint are as under :

467 Noncognizable offence

468 Cognizable offence

471 Cognizable offence

Out of these offences the offence punishable under Sections 468, 471, 420 IPC are cognizable offences, while the offence under Sections 419 and 467 are noncognizable offences. Under Section 320 Cr.P.C., which provides for compounding of offences, the offences punishable under Sections 468, 471, 474 and 467 are noncompoundable. Learned Magistrate thus, could not act under Section 249 Cr.P.C. and dismissed the complaint for want of prosecution and in the absence of the complainant. In the instant case the learned Magistrate had not dismissed the complaint under Section 203 Cr.P.C. which provides for dismissal of complaint as under :

"203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

The second complaint which was filed on 22.7.1993 was also dismissed by the learned Magistrate which had led to the filing of the impugned complaint Annexure P4, under the same Sections, same set of facts and cause of action on 12.4.1994. The learned Magistrate placed reliance on the judgment of this Court reported in 1997(2) RCC 295 wherein it was held that where earlier complaint has been dismissed in default, it cannot be termed to a dismissal under Section 203 Cr.P.C. and a fresh complaint on the same facts would be maintainable. In that case the compliant was dismissed in default. While dealing with the second complaint, the learned Magistrate held that the order dated 20.5.1993 passed by Sub Divisional Judicial Magistrate that the complaint was dismissed for want of prosecution and the application moved by the wife of the complainant showed that her husband was allegedly picked up on 20.3.1993. The next complaint was dismissed as withdrawn and the plea of the complainant was that he was pressurised to withdraw the same. He held that none of the two earlier complaints were decided on merit. The learned Magistrate was of the view that since the earlier two complaints were not dismissed on consideration of evidence on record and as such there was no bar in entertaining the complaint in hand. As seen above, the complaint was not dismissed under Section 203 Cr.P.C. and the same could not be dismissed under Section 249 Cr.P.C. as the offences involved therein were cognizable offences which are not compounded. The second complaint was dismissed as withdrawn for which there is no provision made either in Section 203 or Section 249 Cr.P.C.

The learned Single Judge of this Court, in the case of Surjit Kaur and others (supra) has held that the order of dismissal of the complaint passed by the Magistrate whether on the statement of the complainant or otherwise has the implication that the complaint was dismissed, a second complaint will not be competent.

The complainantrespondent filed successive complaints without disclosing in the second and third complaint about the filing of the earlier complaints and its dismissal by the Court. The filing of successive complaints in the facts and circumstances of the case clearly amounts to abuse of process of Court.

In view of the foregoing decision, I am of the considered opinion that the impugned complaint and the impugned order of summoning deserve to be quashed as their continuance would amount to abuse of process of Court.

The petition is accordingly allowed and the impugned complaint and order of summoning as Annexures P4 and P5 are hereby quashed.