Skip to content


Chitto Adhikari Vs. Vidya Bhushan Sharma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Case NumberCriminal Revision No. 65 of 1949
Judge
Reported inAIR1952All455
ActsCriminal Procedure Cose , 1898 - Sections 190, 203, 436, 439 and 561A
AppellantChitto Adhikari
RespondentVidya Bhushan Sharma
Appellant AdvocateC.S. Saran, Adv.
Respondent AdvocateMansur Alam and ;P.N. Bakshi, Advs.
DispositionApplication dismissed
Excerpt:
.....the case of dolegobind das it was held that a presidential magistrate should not re-hear a case previously dealt with by a magistrate of co-ordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or miscarriage of justice. 41, although the dismissal of the previous complaint under section 203 had not been set aside but it was treated by the learned judicial commissioner as a case of exceptional circumstances. 132. 13. i am not satisfied at all that the opposite party has filed the present complaint in order to harass the applicant. 14. there is one more reason for which this application must fail......some authoritiesthat a magistrate may refuse to take cognizanceof an offence on a complaint when a previouscomplaint on the same allegations was dismissed.the authorities have not stated in so many wordsthat the previous dismissal of a complaint on thesame allegations affects the jurisdiction of amagistrate to take cognizance of the offence ona fresh complaint. dicta in some authorities maysuggest that it is really not a case of jurisdictionand that what is meant is that the magistratetaking cognizance on the second complaintshould dismiss it or quash further proceedingson the ground that the previous complaint hadfailed. really, however, the objection can beonly to the jurisdiction of the magistrate, foronce he takes cognizance of an offence and assumesjurisdiction over the.....
Judgment:
ORDER

Desai, J.

1. The opposite party filed a complaintunder Section 500, Penal Code, against the applicantin the Court of the City Magistrate of Banaras,who, without issuing a process, dismissed it on28th June 1947 on the ground that it was toovague, but, at the same time, expressly left itopen to the opposite party to file a fresh complaint.Accordingly on 2nd september 1947 hefiled a fresh complaint on the same facts and theCity Magistrate transferred it for trial to theCourt of Mr. J. D. Shah. Mr. J. D. Shah againdismissed the complaint on 19th September 1947without issuing a process and without going intothe merits. His order was erroneous on the faceof it and the opposite party got it set aside bythe learned Sessions Judge in revision. Thecomplaint went back to Mr. Shah for disposalbut it was transferred from his Court, to thatof Mr. M. M. Krishana. Mr. Krishana fixed 8thJuly 1948, for hearing evidence under Section 202,Criminal P. C. On that date the opposite partywas absent and the complaint was once moredismissed by Mr. Krishana under Section 203, CriminalP. C. On 27th July 1948, the opposite partyagain filed a fresh complaint on the same allegationsin the Court of the City Magistrate whotransferred it for disposal to the Court of Mr.Srivastava where it is now pending. He has notissued any process against the applicant as yet.

2. The applicant applied to the District Magistratethat the proceedings on the fresh complaintwere null and void because the order of 8th July1948 had not been set aside in revision. Thelearned District Magistrate was not prepared toquash the proceedings and the applicant hascome up to Court.

3. Section 190, Criminal P. C. is the sectiondealing with the jurisdiction of magistrates totake cognizance of an offence on a complaint etc.It says that a Magistrate 'may' take cognizanceof an offence on a complaint. Though the sectionis worded as if it were permissive, it doesnot appear that the intention of the legislaturewas to give discretion to Magistrates in the matterof taking cognizance of an offence on a complaint.It a complaint discloses a offence overwhich the Magistrate has jurisdiction and hisjurisdiction over it is not barred by a statutoryprovision such as that contained in Section 195, CriminalP. C., he seems to be bound to take cognizance.There is nothing in the section to suggestthat he can refuse to take cognizance. It maybe that be will have no data on the basis ofwhich he can decide whether to take cognizanceor not, but it seems that even if there are somedata, it is not open to him to refuse to takecognizance.

4. It is contended, on the basis of some authoritiesthat a Magistrate may refuse to take cognizanceof an offence on a complaint when a previouscomplaint on the same allegations was dismissed.The authorities have not stated in so many wordsthat the previous dismissal of a complaint on thesame allegations affects the jurisdiction of aMagistrate to take cognizance of the offence ona fresh complaint. Dicta in some authorities maysuggest that it is really not a case of jurisdictionand that what is meant is that the Magistratetaking cognizance on the second complaintshould dismiss it or quash further proceedingson the ground that the previous complaint hadfailed. Really, however, the objection can beonly to the jurisdiction of the Magistrate, foronce he takes cognizance of an offence and assumesjurisdiction over the subject-matter of thecomplaint, he is bound by the procedure containedin the Criminal P. C and I have not comeacross any authority laying down is so manywords that he is free to depart from the procedureand dismiss the complaint or quash furtherproceedings even though the same cannot bejustified by any of the provisions laying downthe procedure. There is no statutory provisionallowing a Magistrate to dismiss a complaint onthe ground that a previous complaint on thesame allegations was dismissed and the order ofdismissal is still in force. Sulaiman C. J. statedin Lallain v. Emperor 1934 ALL. L. J. 241 atp. 244 that

'the second Magistrate himself cannot dismiss the complaint on the simple ground that he is precludedfrom trying it because a previous complaint of the same nature has already been dismissed.'

If once a Magistrate takes cognizance of an offence on a second complaint, he is bound to proceed with it and cannot dismiss it merely on the ground of dismissal of the previous complaint. As the objection is really against the assumption of jurisdiction or the taking of cognizance by a Magistrate, it is bound to fail because Section 190, Criminal P. C. gives unlimited power to a Magistrate to take cognizance of an offence. It was correctly stated by a Bench of this Court as far back as in the year 1896 that

'there is nothing whatever in that section which limits the powers of Magistrates to taking cognizance only upon the first complaint made to them'; see Queen-Empress v. Umedan, 1895 All. W. N. 86.

Richards J. in Emperor v. Mehrban Husain, 29 ALL. 7, could find nothing in the Criminal Procedure Code which prevents a Magistrate from entertaining a second complaint made against the same person even though the second complaint may be connected with a previous complaint which has already been dismissed under the provisions of Section 203.

5. Section 403 of the Code contains the only provision which bars the trial, of a man on the ground that he has been previously tried. It requires that the man must have been acquitted or convicted in the previous trial. Its explanation makes it clear that the dismissal of a complaint is not an acquittal for purposes of this section. Thus the legislature itself has laid down that a person cannot object to his being placed on trial on the ground that a previous complaint made against him had been dismissed.

6. It is open to a person whose complaint has been dismissed under Section 203 of the Code to have the order of dismissal set aside on revision under Section 436, Criminal P. C. But the fact that this remedy is open to him does not lead to the conclusion that it is the only remedy and that he cannot file a fresh complaint on the same allegations. The law is that he 'may' apply for the setting aside of the order of dismissal and not that he 'must'. Section 436, Criminal P. C. is only an enabling section; see Mt. Harbai v. Raya Premji, A. I. R. (26) 1939 sind 193 The matter is made clear by the explanation to Section 403, Criminal P. C. The explanation would be meaningless if the order of dismissal under Section 203, Criminal P. C. had to be set aside before a subsequent complaint could be filed. In Emperor v. Kiru, 46 Pun. R. Cr. 1911 page 23 at p. 33, a Full Bench laid down that

'it is not necessarily illegal to undertake a fresh inquiry against an accused person who has been discharged, even where the order of discharge has not been dealt with by higher authority under Section 437, Criminal P. C.'

The same view was taken by Sulaiman C. J., in the case of Lallain, 1934 ALL. L. J. 241 (supra).

7. As the objection to the subsequent proceedings can be only on the ground that the Magistrate had no jurisdiction to take cognizance of the offence on the second complaint, I do not know how the law could permit such an objection without ensuring that the subsequent Magistrate had the means of knowledge about the dismissal of the previous complaint. A person filing a second complaint on the same allegations is not bound by any law to mention in it that his previous complaint had been dismissed. Not only is it not illegal, but also it is not unlawful for him to conceal the fact. He may mention the fact but is not bound to do so. If it were the law that the jurisdiction of a Magistrate is barred by the dismissal of the previous complaint, a complainant filing a second complaint would refrain from mentioning in it the dismissal of the previous complaint. The Magistrate not knowing about the dismissal of the previous complaint would be bound to take cognizance of the offence and then he would not be able to do anything even if he discovered later that a previous complaint had been dismissed. That would be quite an unsatisfactory state of law.

8. I have been dealing with a second or fresh complaint on the same allegations. But really it does not matter whether it is a second or fresh complaint or an application to revive a dismissed complaint. The authorities are in support of the view that the same law governs an application to revive a dismissed complaint and a second complaint.

9. The authorities which preclude a second complaint from being entertained by a Magistrate proceed on two lines of reasoning, depending on the circumstances. One line of reasoning is that

'we think it utterly contrary to sound principles that one Magistrate of co-ordinate jurisdiction should, in effect and substance, deal with, as if it were an appeal or a matter for revision a complaint which had already been dismissed by a competent tribunal of co-ordinate authority,' See Queen Empress v. Adam Khan, 22 All. 106, at p. 108.

It is necessary to make a particular note on the facts in the case of Adam Khan because the learned Judges observed:

'We desire it to be distinctly understood that we decide nothing except the question actually raised by the facts in this case, which is, that when a competent tribunal has dismissed a complaint, another tribunal of exactly the same powers cannot re-open the same matter on a complaint made to it' (p 108).

They did not want the principle enunciated by them to be extended. There a complaint of H was dismissed on merits under Section 203 Criminal P. C. by one Magistrate, the complainant filed a second complaint on the same allegations but to another Magistrate of co-ordinate jurisdiction and the learned Judges quashed the proceedings on that complaint. That case was interpreted by Sulaiman C. J. in the case of Lallain (1934 ALL L. J. 241) (supra) to lay down that 'another tribunal should not ordinarily re-open the question.' Only a few days previously the case of Queen Empress v.Adam Khan, was followed by Iqbal Ahmad J. in Ramanand v. Sheri. 56 ALL 425. There a previous complaint was dismissed under Section 203, Criminal P. C. by a Special Magistrate but it is not known whether on merits or in default. Then the complainant filed a second complaint in the Court of the Sub-Divisional Magistrate who transferred it for disposal to another Special Magistrate and the learned Judge quashed the proceedings and dismissed the complaint. If the previous complaint had been dismissed in default, the principle laid down in the case of Adam Khan did not apply.

10. The other line of reasoning is that it is an abuse of the process of Court for a person to go on filing one complaint after another on the same allegations. In Faquir Chad v. Karam Chand A. I. R. (29) 1942 Lah. 122, two previous complaints were dismissed and when the man filed a third complaint, it was thought that he was harassing the accused by filing one complaint after another. In Panchu Das v. Asraf Ali : AIR1948Cal129 , Harries C. J., observed at p. 130:

'If the complainant files a complaint, it is his duty to prosecute it. By a piece of bad luck he may fail to turn up on one occasion and he may ask a Court to hear a fresh complaint; but when he fails to turn up on a second occasion and the petitioners are discharged, it appears to me that a Court should be very reluctant to entertain a third complaint particularly when the explanation given by the complainant is obviously false. It seems to me in this case that the complainant is harassing these petitioners. It is to be observed that when the petitioners were discharged on the second occasion, the Magistrate did express his opinion that there was nothing in the complaint. If this order of the learned Magistrate is to stand, it appears to me that the complainant may fail to turn up again and upon the petitioners being discharged restart the whole proceedings. There must be a limit to this sort of thing and that limit, I think, was reached when the petitioners were discharged for the second time.'

Iqbal Ahmad J. stated in the case of Ramanand, 56 ALL. 425 at p. 426 that:

'It would be highly inconvenient to allow successive trials of complaints, based on the same allegations, by different Magistrates and different Courts--'

11. The argument that a person, whose complaint has been dismissed by one Magistrate, should not be allowed to go to another Magistrate with another complaint on the same allegations as if the latter were sitting on appeal, can be overstressed as admitted by Weston J. in the case of Harbai, A. I. R (26) 1939 Sind 193. Moreover, it pre-supposes that the remedy of the aggrieved complainant is to have the dismissal set aside in revision, but as explained earlier, this is not the law. The argument can be availed of only when the first complaint is dismissed on merits, and a second complaint is filed before another Magistrate of concurrent or lower jurisdiction. If the previous complaint is dismissed in default and not on merits, there is no reason why it should be thought that filing a second complaint before any other Magistrate whatsoever would be tantamount to appealing to him against the dismissal of the previous complaint. If the previous complaint was not proceeded on merits at all bat was dismissed in default or on some technical grounds, the filing of a second complaint would not be tantamount to re-opening the matter, but would be simply a case of proceeding further with the complaint. And if the second complaint is filed before the same Magistrate who had dismissed the previous one, there arises no question of indirectly asking one Magistrate to sit in judgment over an order of another Magistrate. It may amount to asking a Magistrate to review his previous order but it is agreed by all authorities that an order dismissing a complaint under Section 203, Criminal P. C., is not a judgment and that a Magistrate is not debarred by Section 369 of the Code from reviving a dismissed complaint, or which is the same thing, entertaining a fresh complaint on the same allegations. In the present case the complaint was dismissed in default by Mr. Krishana and he had no reason to feel slighted by the opposite party's going to another Magistrate with a fresh complaint. If the second complaint is filedbefore a Magistrate of higher jurisdiction, I do .not know what harm there is even if the Magistrate who had previously dismissed the complaint thinks that the complainant has gone in appeal against his order. No Magistrate has a lien over any case and even if one has a lien, the lien is at an end and when the case has been disposed of. A Magistrate has no right to indulge in any feeling in respect of such a matter, and the Legislature should not, and does not, take notice of a Magistrate's feelings in such a matter. In Ram Bharose v. Baban, 12 ALL L. J. 106 a complaint was dismissed on merits under Section 208, Criminal P. C., another complaint by the brother of the complainant was filed on the same allegations to the same Court and it came up for hearing before another Magistrate who came on transfer; it was held that the proceedings on the second complaint could not be quashed. Keymer v. Emperor, 12 ALL L. J. 1 was a similar case. There the accused was discharged on the ground that no case was made out, the complainant then made a report about the same matter at the police station,--the police after investigation prosecuted the accused in the same Court, and it was held that that Court had jurisdiction to go on with the case. In Madras the matter has bean considered twice by a Full Bench. Emperor v. Chinna Kalippa Gounden, 29 Mal. 126 is the earlier case where a complaint was dismissed under Section 203, Criminal P. C. on the ground that no offence was made out and a fresh complaint on the same allegations to the same Magistrate was allowed by the Full Bench to go on. Sir Arnold White C. J. said at p. 132 that 'the argument ab inconveneiti is of little weight.' The maxim nemo bis vexari was pressed in service on behalf of the accused but the reply given by Moore J. at p. 148 is that:

'This may be a good argument where an accused person has been discharged under Section 253, Criminal P. C., or Section 259, Criminal P. C., but it is clear that it has no application to a case where a complaint is dismissed under Section 203, Criminal P. C.'

Referring to the argument that if a fresh complaint on the same allegations were allowed, there would be no check on complainants, Moore J. observed at p. 148:

'It might be urged with equal force that there is nothing to prevent a Third Class Magistrate in this Presidency from committing every petty case of assault or nuisance that comes before him to the Court of Session.'

The later case is In re Ponnuswami Goundan, 65 Mad. 622. In that case a complaint was dismissed under Section 203, Criminal P. C. on a wrong technical objection. The police then submitted a charge sheet on the same allegations in the Court of another Magistrate of lower jurisdiction and the Full Bench refused to quash the proceedings. They stated:

'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.' (626)

In the case of Ramanand (56 ALL. 425) it was stated by Iqbal Ahmad J. that the proceedings cannot be quashed if the second complaint is presented to the Magistrate who had dismissed the previous complaint or to his successor or to the Sub-Divisional Magistrate provided he transfers it to the Magistrate who had dismissed the previous complaint but not if he transfers it to another Magistrate. I regret my inability to see on what legal principle this distinction is made. My inability is shared by Weston J. who in the case of Harbai, A.I.R. (26) 1939 Sind 193 observed at p. 194:

'It is not clear upon what legal basis the Allahabad High Court considers that the distinction made in the three classes of cases is justified.'

Once it is accepted that the question is of jurisdiction and once the jurisdiction is validly assumed, nothing that happens subsequently should affect it. There is no reason for making a distinction between a case in which the Magistrate entertaining a second complaint transfers it to the Magistrate who had dismissed the previous complaint and a case in which he transfers it to another Magistrate. I do not see any reason why the proceedings should be quashed in the second case if they cannot be quashed in the first case. It would be unsatisfactory law if it left the question of the validity of continuing the proceedings on mere chance or vagaries of the Magistrate to whom the second complaint is presented. It would be a chance that the second complaint is presented to another Magistrate. Every Magistrate who has jurisdiction over a case dots not necessarily possess jurisdiction to take cognizance of an offence on a complaint. It may be that a Magistrate who dismisses a complaint under Section 203 has no power to entertain a second complaint and the complainant would be obliged to take it to anotherMagistrate. It does not seem reasonable that whether the complainant can take the second complaint to a Magistrate or must first get the order of dismissal set aside under Section 436 should depend upon whether the Magistrate dismissing the complaint is competent to take cognizance of an offence on a complaint or not. It would be a case of vagaries because the validity or otherwise of the proceedings is said to depend upon whether the Magistrate to whom the second complaint is presented transfers it to the Magistrate who had dismissed the previous complaint or to another. He is not bound to transfer it to the Magistrate who had dismissed the previous complaint. I respectfully agree with the observation of Sir Francis Maclean C. J. in Queen. Empress v.Dolegobind Das, 28 Cal. 211 at p. 217 that:

'It would amount to an absurdity to say that the same Magistrate can issue such process, though the order has not been set aside, but that another Magistrate of coordinate jurisdiction cannot do so, but must wait till the order has been set aside.' The view taken by the Lahore High Court is that:

'It is only in exceptional circumstances that the second complaint should be entertained on the same facts, for instance where the order of dismissal was manifestly perverse or foolish or based upon an incomplete record.' (per Goldstream J.) Chamman Lal v. Emperor, A. I. R. (23) 1936 Lah. 47, following Emperor v. Kiru, 46 Pun Re Cr. 1911 p. 23. In Allah Ditta v. Karim Baksh, 12 Lah. 9, Bhide J. quashed proceedings on a second complaint because a previous complaint by the complainant's brother had been dismissed under Section 203, Criminal P. C., on the ground that the dispute was of a civil nature. In the case of Dolegobind Das it was held that a Presidential Magistrate should not re-hear a case previously dealt with by a Magistrate of co-ordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or miscarriage of justice. The view taken in this case was approved of by a Pull Bench in Dwarka Nath v. Beni Madhab, 28 Cal. 692. A second complaint on the same allegations was entertained in Pearey Lal v. Emperor A. I. R. (27) 1940 Pesh. 41, although the dismissal of the previous complaint under Section 203 had not been set aside but it was treated by the learned Judicial Commissioner as a case of exceptional circumstances.

12. The conclusions at which I arrive are as follows: There is no legal bar to a Magistrate's taking cognizance of offence on a second or fresh complaint whether the previous complaint was dismissed, on merits or otherwise, and by him or by any other Magistrate. If the second complaint discloses an offence and he has jurisdiction to take cognizance of it, he is bound to take cognizance of it. Once he takes cognizance of the offence, he is bound to proceed with the complaint according to the Criminal P. C. and has no power to dismiss it solely on the ground that a previous complaint on the same allegations had been dismissed. The inherent powers exist onlyin the High Court and they will be exercised only to prevent abuse of the process of Court. The only direction that need be given to the Magistrate entertaining the second complaint is that, before deciding whether to issue a process against the accused, he must consider the grounds on which the previous complaint had been dismissed. In the case of Harbai, A. I. R. (26) 1939 Sind 193 (at p. 196) Weston J. was of the opinion that:

'When entertaining a second complaint, a Magistrate should keep in mind the default committed in the earlier proceedings.'

I think the learned Judge meant that the default should be kept in mind while deciding upon the next step. He has to choose between two alternatives--one of ordering inquiry under Section 202, and the other of issuing a process. There is a great weight of authority in favour of these conclusions; for instance see observations of Kensington J. in the case of Kiru, 46 Pun Re Cr. 1911 at p. 33, Richard J. in the case of Mehrban Husain, 29 ALL. 7 at p. 9, and Sir Arnold White C. J. in the case of Chinne Kaliappa Goundan, 29 Mad. 126 at p. 132.

13. I am not satisfied at all that the opposite party has filed the present complaint in order to harass the applicant. He has defaulted only once, namely on 8-7-1948. He is not responsible for the dismissal of other complaints. There is, therefore, no question of my exercising inherent powers to quash the proceedings pending against the applicant.

14. There is one more reason for which this application must fail. It is that since no process has yet been issued against him, he cannot be said to have been aggrieved by the entertainment of the present complaint. He has no locus standi to appear before me with the prayer to quash the proceedings. In certain cases a High Court will exercise its revisional powers at the instance of a third person, but the present is not such a case. In the result I dismiss this application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //