Santokh Singh and another vs Gurpal Singh and another

V.S. Aggarwal, J.

This is a revision petition filed by Santokh Singh and others directed against the order passed by learned Additional Chief Judicial Magistrate, Ambala dated 26.8.1994. By virtue of the impugned order, the learned trial Court held that there is nothing in the Code of Criminal Procedure to suggest that joint complaint is not maintainable and consequently the application filed by the petitioner was dismissed.

The relevant facts are that petitioners were summoned by the learned trial Court with respect to offences punishable under Sections 148/323/149/452 and 506 Indian Penal Code. They preferred an application for rejection of the complaint filed by the respondents on the ground that it is not maintainable since it had been filed by four persons and statement of only one person has been recorded.

The application was contested on the ground that there is no specific provision in the Code of Criminal Procedure whereby a joint complaint is barred. Therefore, the application, as such was not maintainable.

Learned Additional Chief Judicial Magistrate, Ambala vide the impugned order held that under Section 2(Y) of the Code of Criminal Procedure, the words which are not defined in the said Code shall be taken to have the meaning as given in Indian Penal Code. Reference was made to Section 9 of the Indian Penal Code that words importing singular number include the plural numbers also and vice versa. It was held that there was nothing in the Code of Criminal Procedure to bar a joint complaint and with these findings the application filed by the petitioners was dismissed. Hence the present revision petition.

At the outset it may be mentioned that there is divergence of opinion in this regard as to if only one person can file a complaint under section 200 of the Code of Criminal Procedure or more than one can join in the said complaint as complainant. Section 200 of the Code of Criminal Procedure reads as under :

"200. Examination of complainant. A magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 :

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them."

It is apparent from the aforesaid that specifically there is no bar by the Legislature in more than one complainant being mentioned in the complaint filed with the Court of the Magistrate. This question came up for consideration in the case of Abdul Karim and another v. Nangoo and another, AIR 1942 Oudh 407. Besides considering the question as to if all complainants have to be examined or not, the learned Single Judge of the Oudh Court held that there is no provision in the Criminal Procedure Code that a complaint may be made by more than one person. There is nothing to suggest that it must be made by one person only. It was further held that there is no reason why joint complaint should not be made by two persons who allege similar and connected offences against one or more persons committed in the course of the same occurrence. Reference was made to Section 13 of the General Clauses Act that the words in singular include the plural and vice versa unless there is something repugnant in the Act itself. Same view prevailed with the Allahabad High Court in the case of Shital Chandra Datta v. Babu Ram Jodaun and others, AIR 1967 Allahabad 150. In paragraph 9, it was held to the following effect :

"(9) There is nothing in the Code to suggest that a complaint must be made by one person only. No doubt section 100 refers to a "complainant" in the singular. But Section 13 of the General Clauses Act provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. There is nothing repugnant in the subject or context of Section 200 which would make it obligatory that the complaint must be made by one person only."

This question came up for consideration before Judicial Commissioner, Manipur in the case of Paokhohen Kuki v. Tongkhohen Kuki and another, AIR 1969 Manipur 56. The view expressed by Oudh Court in the case of Abdul Karim (supra) was approved.

View to the contrary can be noticed from the judgment of the Division Bench of the Calcutta High Court in the case of Sashadhar Achryya and another v. Sir Charles Tegart and others, AIR 1931 Cal 646. The Calcutta High Court held to the following effect :

"The first and most prominent fault is that it is a joint complaint which so far as we know is not contemplated by the Criminal Procedure Code. The duties of a Magistrate under Section 200, Criminal Procedure Code make this clear, because in taking cognizance of an offence on complaint he must at once examine the complainant upon oath and it is obvious that if there are two or more complainants on the same complaint, it is physically impossible to fulfil the provisions of that section."

In line with the decision of the Calcutta High Court is the decision from the Madras High Court in the case of Narayanaswami and others v. Egappa Reddi and others, AIR 1962 Madras 443. The learned Single Judge of that Court took into consideration provisions of section 247 and 259 of the Code of Criminal Procedure (1898) with respect to dismissal of a complaint in the absence of complainant and held that complaint can only be filed by one person. It was noted that difficulty would arise even in matters of compounding of an offence. The specific findings arrived at are being reproduced below for the sake of facility :

"Under Section 233, Cr.P.C. for each distinct offence of which any person is accused, there should be a separate charge and the exceptions are contained in the subsequent sections. There is no provision in the said sections dealing with joinder of charges authorising two or more complainants to file a single complaint. If the authors of the Code of Criminal Procedure contemplated such filing of joint complaints, they would have clearly made provision for them corresponding to JUDGMENT 1, Rule 1, C.P.C. providing for joinder of plaintiffs in civil suits. On the other hand, provisions like Section 247, Cr.P.C. in summons case and Section 259, Cr.P.C. in warrant case as to the powers of the Court to dismiss a complaint in the absence of the complainant clearly indicate that a complaint could be filed by only one person. It has been rightly pointed out by the learned advocate for the petitioners that there would be difficulty even in the matter of compounding of the offences by the accused with every one of the complainants in the case of joint complaints. It should be noted that the petition has been filed at the earliest stage before the evidence was taken. There can be no difficulty for the respondents to file separate complaints."

The same view prevailed with the Kerala High Court in the case of C.S. Desai v. B. Paul Abrao, 1963 Kerala Law Times 548. The view of the Madras High Court in the case of Narayanaswami (supra) was followed with approval. In the subsequent decision from the Madras High Court in the case of R. Krishnamurthy and another v. M.P. Raja and another, 1989 Madras Law Journal Reports (Criminal) 13, the earlier decision of the Madras High Court was again followed.

On appraisal of these precedents cited at the bar, it becomes necessary to scan through the relevant provisions in this regard. It is clear that the Code of Criminal Procedure does not specifically bar in so many words that a joint criminal complaint cannot be filed under Section 200 of the Code of Criminal Procedure, but, a duty has been cast on the Magistrate to examine the complainant, when the complaint is filed. The expression "complaint" as defined in Section 2(d) of Code of Criminal Procedure, means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code. Therefore, complainant would be one, who moves the machinery of Magisterial Court by making certain allegations for taking action against the person who has committed an offence. Necessarily in the context it has to be one person rather than more than one.

It has rightly been pointed out that otherwise provisions of Section 249, Cr.P.C. which refer to the absence of the complainant and the action to be taken by the learned Magistrate, became redundant. This conclusion gets fortification from subsection (2) to Section 250 Code of Criminal Procedure, which reads as under :

"250(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make an order that compensation to such amount, not exceeding the amount of fine he is empowered to impose, as he may determine, be paid by such complainant or informant to the accused or to each or any of them."

It empowers a Magistrate to direct the complainant to pay compensation. Such an order can be made against such complainant. It has to be a singular person because otherwise there would be a provision for imposing a fine jointly if there were more than one complainant.

In face of the aforesaid, I respectfully agree with the view point of the Madras, Kerala and Calcutta High Courts.

It is true that under section 2(Y) of Code of Criminal Procedure, words and expressions used and not defined but defined in the Indian Penal Code have the meaning respectively assigned to them in that Code. Section 9 of the Indian Penal Code describes :

"9. Number Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number."

The obvious argument is that expression singular will include plural. One cannot, however, forget the opening words "Unless the contrary appears from the context." It has been noticed from the scheme of the Code of Criminal Procedure that there has to be one complainant. The contrary appears from the context and therefore this argument so much thought of by the learned counsel for the respondents must fail.

The next question that immediately arises is as to what is the effect of error that has occurred in the present case. This is basically a procedural defect. It will not go to the root of the matter. Justice is the main deity. Procedural aspects only perform certain auxiliary functions. No such prejudice can be held to have been caused to the petitioner, which is not curable. Therefore, it is in the fitness of things that the respondents before the learned trial Court will exercise the option as to which of the respondents should be permitted to continue and be mentioned as the complainant. The names of other respondents can be deleted and if the complainants, who choose to continue with the complainant so like, otherwise would be permitted to be added as witnesses.

Subject to aforesaid, I accept the revision petition and set aside the order passed by the learned trial court.