D.A. Desai, J.
1. Petitioner is the original accused in Criminal Case No. 731 of 1971 an the file of the City Magistrate. 5th Court. Ahmedabad, Opponent No. 1 is the original complainant. Opponent No. 1 had filed Criminal Case No. 2 of 1971 in the Court of the City Magistrate, 9th Court, Ahmedabad on 10th March 1971. The learned City Magistrate recorded the statement of the complainant on oath and passed an order that process for an offence under Section 420 of the Indian Penal Code should be issued. The case, for the reasons to be presently mentioned came to be transferred to the 8th Court. When the case was pending before the 8fi Court, complainant gave an application on 4th May 1971 requesting the learned Magistrate that the complainant had alleged certain facts in the complaint which if prima facie accepted would indicate that offence under Section 467 read with Section 471 of the Indian Penal Code is committed and as this offence is exclusively triable by a Court of Session the Court should proceed according to the procedure prescribed for preliminary inquiry leading to the committal of the accused to the Court of Session. This application appears to have been contested by one Shri D.P. Oza on behalf of the present petitioner, The learned Magistrate dismissed the application on 10th May 1971 observing that neither the learned Advocate of the complainant nor the complainant were present in the Court and that as the process was issued by an order of the predecessor of the learned Magistrate, it was open to the complainant to approach the higher count if he was dissatisfied with that order. After dismissing the application, learned Magistrate set down the case for hearing on 12th May 1971 on which date when the case was called out. it appears that the complainant and his advocate both were absent and therefore, the learned Magistrate in exercise of the powers conferred upon him under Section 259 of the Criminal Procedure Code dismissed the complaint and discharged the accused.
2. It appears that after discharge of the accused in the aforementioned complaint, the complainant filed another complaint again in the 9th Court on 15th May 1971. This complaint came to be transferred to the 5th Court in the circumstances to be presently mentioned. The learned Magistrate presiding over the 5th Court recorded the statement of the complainant and directed that a process be issued for offences under Sections 406. 467 and 471 of the Indian Penal Code. The petitioner-accused has moved this Court under Section 561-A of the Criminal Procedure Code for quashing the second complaint.
3. Mr. N.H. Bhatt. learned Advocate for the petitioner urged that as the complainant was utterly dissatisfied by the order of the learned Magistrate 8th Court issuing process for an offence under Section 420 only, he deliberately resorted to a subterfuge to get the complaint dismissed by remaining absent and then by instituting the second complaint in the manner as would avoid the first Court which had passed the initial order of issuing process under Section 420 and obtained an order which he very keenly desired. It was urged that if it appears reasonably correct that the complainant deliberately got his complaint dismissed and instituted a fresh complaint on the same allegations with an ulterior end in view, the Court must interfere and quash the complaint on the sole ground that it is an abuse of the process of law. I must say that the allegations are quite serious and I must also confess that & part of it appears even to be true. Question is whether part which is true is sufficient enough to exercise powers under Section 561-A of the Criminal Procedure Code so as to quash the complaint.
4. Respondent-complainant filed his first complaint on 10th March 1971 in the 9th Court of the City Magistrate making allegations that the present petitioner is accused of forging certain challan used in paying income-tax on behalf of the firm of which he was a partner, or using the forged challans as genuine and also cheating the complainant; or in the alternative committing criminal breach of trust in respect of certain amount entrusted by the complainant for payment of income-tax. A detailed complaint is filed and I must confess that the allegations are quite serious. Now, the Administrative Order for distribution of the work then in force shows that all the private complaints had to be filed in the 9th Count of the City Magistrate. Accordingly, the complainant had filed his complaint in the 9th Court. The complainant has filed an affidavit in this Court stating that the learned Magistrate of the 9th Court recorded the statement of the complainant as required by law and thereafter issued process for an offence under Section 420 of the Indian Penal Code and simultaneously informed the complainant that as the accused was related to the learned Magistrate the case would have to be transferred to some other Count and accordingly submitted the papers to the Chief City Magistrate for appropriate orders. The case came to be transferred in due course to the 8th Court of the City Magistrate. When the case was pending before 8tti Court, an application was given by the complainant on 4th May 1971 inviting the learned Magistrate to follow the procedure prescribed for preliminary inquiry as the offences alleged and in respect of which prima facie proof would be tendered were exclusively triable by Court of Session. As the process was issued for an offence under Section 420 of the Indian Penal Code only, it was not likely that the learned Magistrate would proceed according to the procedure prescribed, for trial of a warrant case instituted upon a private complaint. The complainant appears to be keen to lead evidence in respect of serious offences of forgery and use of forged documents alleged in ruche complaint. Therefore at that stage an application drawing the attention of the learned Magistrate was given. This application appears to have been contested on behalf of the petitioner and it came to be dismissed on 10th May 1971 by the learned Magistrate. On 10th May 1971 when the application was heard, learned Advocate for the complainant and the complainant were absent. It is so stated by the learned Magistrate in his order and is not controverter. It appears, thereafter, learned Magistrate set down the case for further proceeding On 12 May 1971. But on that day also the complainant and his advocate were absent and the learned Magistrate in exercise of the powers conferred upon him under Section 259 of the Criminal Procedure Code dismissed the complaint and discharged the accused. So far there is no controversy between the parties as to the facts alleged.
5. Next stage is when the complainant filed another complaint within seven days of the dismissal of the first complaint. When the second complaint was filed on 15th May 1971 complainant also stated in that complaint that the earlier complaint filed by him in the 9th Court came to be transferred to the 8th Court and it was numbered as Criminal Case No. 2 of 1971 and that case was adjourned from time to time and on 4th May the complainant save an application hereinbefore mentioned; that application was set down for hearing on 10th May 1971. It is further stated that on that day as the complainant was busy with his sales tax work, he could not attend on 10th May 1971. It is further stated that the case was fixed for hearing on 12th May 1971 on which date also the complainant could not remain present as his sales tax oases were going on before the Sales Tax Officer. It is further stated that the learned Magistrate dismissed the complaint as the complainant was not present and discharged the accused. Mr. Bhatt urged that the complainant was dissatisfied when the learned Magistrate issued process for an offence under Section 420 of the Indian Penal Code only and that he was keen to invite the Court to examine 1he case for offences under Sections 467 and 471 of the Indian Penal Code. Mr. Bhatt further urged that the complainant must have been chagrined when the process was issued for an offence under Section 420; and this becomes discernible from the conduct of giving of the application on 4th May 1971 when the complainant invited the Court to follow the procedure prescribed for a preliminary inquiry. Mr. Bhatt further urged that when this application was also dismissed, the complainant saw no way out of the unenviable situation in which he found himself and therefore, deliberately, or intentionally, remained absent with a view to get his complaint dismissed so that he can resort to the second inning and start the whole thing de novo and in the process to pick and choose the Court. Of course Mr. Bhatt did not press the allegation of picking and choosing the Court when Mr. D.K. Shah stated that as the Administrative order for distribution of the work then stood, every private complaint had to be filed in the 9th Court and the transfers came in the circumstances mentioned by the complainant in his affidavit hereinbefore referred to. That seems to be correct.
On both the occasions the complaint has been filed in the 9th Court. Now, if the learned Magistrate could proceed to hear the complaint, there was no option with the complainant to pick and choose the Court. Transfer on bath the occasions of the complaint substantiates the truth of the statement made by Mr. Shah that learned Magistrate was not inclined to proceed with the case because the accused was related to him. If this is not true, there was no reason for the case being transferred on the first occasion to the 8th Court and on the second occasion to the 5th Court. It is not suggested that the complainant maneuvered with Chief City Magistrate to avoid 8th Court so that the complainant may take a chance of persuading another Magistrate to issue process as he desired. To me it appears that all throughout there is comedy of errors in this case. If the complainant did not like issuance of process for an offence under Section 420 only, he should have completely ignored that fact till the time he stepped in the witness box. I have not been impressed about advisability of giving application dated 4th May 1971 inviting the learned Magistrate to proceed according to the procedure prescribed for preliminary inquiry. What is the correct legal procedure is the business of the Magistrate and none of the worries of the parties. The complainant should have stepped into the witness box and started leading his evidence. At any stage if he was precluded from giving evidence in respect of any offence other than the one for which process was issued, the learned Magistrate could have been corrected by approaching higher court if the learned Magistrate thwarted any such attempt.
The complainant is not confined to the offence for which the process is issued. That is entirely against the grain of criminal jurisprudence. In fact, law is so flexible on the subject that even though charge for one offence is framed, it would still be open to the Court to convict the accused for any other offence if the same is shown to have been proved by evidence led in the case keeping in view allegation of prejudice of the accused about his attention being not directed to the offence. This becomes clear from the wide provisions embodied in Section 237 of the Criminal Procedure Code. If such be the wide latitude, it is inconceivable that the moment the process is issued for an offence under certain section only, the complainant would be wholly precluded from leading evidence in respect of any other offence alleged in the complaint. Therefore, the apprehension of the complainant was misplaced and the application given on 4th May 1971 was hardly necessary.
The matter does not end there, Surprisingly, the learned Magistrate rejected this complaint is step difficult to comprehend. The only order on such application could be that the complainant should start leading evidence and Court would examine what offences are disclosed in the evidence. No one should worry nor is there any bar in law created by an order issuing the process when in a complaint number of offences are alleged and process is issued for one offence only technically the complaint could not be said to have been dismissed for other offence. Implied dismissal cannot be inferred though where charge is framed for minor offence, one can easily say that if major offence was alleged there was an implied discharge for the major offence. But this inference cannot be stretched to suggest as implied discharge at the stage of issuing process. In a private complaint when the Magistrate passes an order for issuing process, it only means that the Magistrate takes cognizance of an offence. Taking cognizance of any offence and proof being offered for all the offences alleged against an accused are two entirely different things therefore taking cognizance of only one offence does not bar the learned Magistrate to examine evidence led before him to find out what offences, if any. are committed. Therefore, the complainant need not have any apprehension though it appears to have been entertained and it is this inference which reflects upon the complainant's remaining absent at least on 12th May 1971.
6. Mr. A.D. Shah learned Advocate appeared for the complainant before the learned Magistrate. No allegation is made against him. Fact however remains that on 10th May 1971 the complainant was absent and he was again absent on 12th May 1971. Explanation is that the complainant was busy with his sales tax cases. There was sales tax case fixed on 11th May 1971 which came to be adjourned, according to the counter affidavit filed by Mr. Bhatt on 18th May 1971, and there was no case actually fixed for hearing on 12th May 1971. Therefore, the absence of the complainant on 12th May 1971 is understandable on our part and inexplicable on his part. What is the necessary inference avoiding any strong expression. It does appear that the complainant remained absent and thereby consequence under law ensued which in a private complaint unfortunately readily follows. Whenever complainant is absent, learned Magistrate is not bound to -dismiss a complaint under Section 259. When serious allegations as summarized above were made, there was no justification for dismissing the complaint when the complainant remained absent on 12th May 1971. But that is neither here nor there. The complainant's conduct in remaining absent on 12th May 1971 does not appear to be free from blemish. It appears to be motivated, the only motive one can attribute is that he would wish for dismissal of the complaint so that whole process can be repeated. But there was no element of choosing or picking of the Court.
7. When the second complaint was filed, it went to the 5th Court and the learned Magistrate after recording statement of the complainant issued process for offences under Sections 406, 467 and 471 Indian Penal Code. To some extent the complainant must have been satisfied. It also appears that he obtained the result which he was trying to achieve by giving earlier application in the complaint which was dismissed on 12th May 1971.
8. Now, two questions may arise. Is there any bar to the entertaining of the second complaint in law? Answer is obviously No. Dismissal of a complaint under Section 259 unless it results in acquittal does not bar a fresh complaint. It may technically amount to discharge of the accused and discharge does not bar a fresh complaint being entertained on the same facts. Therefore, clearly there is no bar in law to the learned Magistrate entertaining a fresh complaint, When the fresh complaint was entertained, it was again open to the presiding Magistrate, after recording statement of the complainant to decide for what offences process should be issued. It must be conceded that the complainant did not keep back information about filing of the earlier complaint and the fate which it met. Mr. Bhatt undoubtedly took an exception that the complainant deliberately did not state in para 12 of the complaint that in the earlier complaint, process for an offence under Section 420 was issued and deliberately suppressed the fact that an attempt at reviewing that order by application dated 4th May 1971 had not met with success. Mr. Bhatt contended that both these facts should have been stated witch would have directed attention of the learned Magistrate to the fact that process for an offence under Section 420 was issued and that would have influenced his decision.
Frankly speaking. I wish those statements should have been made. But if the learned Magistrate was vigilant, ruse, if any. could not succeed, once the complainant states that previous complaint has been just dismissed. The learned Magistrate would as well call upon the complainant to produce the record and the matter would come to light. Therefore, once information is imparted to the Magistrate taking cognizance of the second complaint that previous complaint on the same facts has been dismissed, the complainant cannot be accused of any ruse or subterfuge because the complainant would always apprehend that he would be easily exposed. I would not draw any inference from not stating in his complaint the fact that in the earlier complaint process under Section 420 alone was issued. If the Court was not chosen and if the fact of dismissal of earlier complaint was not withheld, I am afraid on the mere ground that previous complaint was got dismissed to some extent intentionally or to some extent deliberately, would not be sufficient to exercise powers under Section 561-A of the Criminal Procedure Code to quash the proceedings. It is absolutely correct that no party can be permitted to abuse the process of law, It is equally true that repeated complaint on the same allegations should not be entertained because there is no bar in law. And even though there may not be a legal bar. a proceeding may not be entertained because of the conduct of the complainant or the propriety of the second complaint. Two stand on a different footing. In this case only question is about propriety of the second complaint and not of any legal impediment in its being filed and entertained. Now. if the complainant who possibly acted in a manner which appears unreasonable for certain purpose hereinbefore discussed, should he be totally denied a chance to ventilate his grievance. At this stage, it is not even urged that the second complaint is barred in law. That question may be separately examined as and when agitated. As at present advised, second complaint is clearly en-trainable. Should the complainant be denied judicial adjudication without having a chance of ventilating his grievance? More so when a serious offence is alleged against a man of confidence. It may be that the whole thing may be a pressure tactic. But some mind must be applied at some stage before doors of the Criminal Court are closed to the complainant for ventilating his grievance. If I were to quash the second complaint, the complainant could be denied access to a Court. In my opinion for exercising powers under Section 561-A no case is made out and one cannot penalize the complainant who possibly appears to have resorted to oft repeated tactics in Criminal Court. I would not do that.
9. Mr. Bhatt in this connection drew my attention to Emperor v. Morarji Jivraj. 36 Bom LR 1213 : (1935) 36 Cri LJ 483. In that case widow of Narsi Sawal filed criminal complaint against the petitioner and one another whom she charged with criminal breach of trust and abetment thereof and using a forged share-transfer form in respect of certain shares. Process was issued and summons for production of account books relating to the alleged transaction was also issued. Complainant applied for a reference of the case to the Criminal Investigation Department under the provisions of Section 202 of the Criminal Procedure Code. This application was rejected. Thereafter on the date of hearing, the complainant remained absent and the complaint was dismissed and on the next day second complaint was filed and simultaneously the learned Magistrate entertaining second complaint granted the prayer for referring the case to the Criminal Investigation Department. The accused applied for revocation of the order alleging that the complaint was got dismissed to circumvent the provisions of law. That application was rejected and that order rejecting the application was questioned in the High Court. While allowing the application, it was observed that the conduct of the complainant in remaining absent on the date of hearing of the first complaint was intended to circumvent the provisions of the law and to take an unfair advantage of the Court's powers. Mr. Bhatt urged that if the complainant's conduct discloses an attempt at abusing the Court's power, higher Court must be approached. In that case what was being set aside by the order in the revision application was an interim order as the order was obtained by subterfuge resorted to by the complainant. In the facts of the case before me first order has hardily any legal consequence and in my opinion, even the second order has hardly any consequence for the obvious reason that after the evidence is led court would be called upon to examine what offences are disclosed entirely untrammeled by an order issuing the process for certain offences. Therefore, this decision is not of much assistance in the facts of the present case. Reference was also made to Birendra Kumar Choudhary v. Ashutosh Adhikari. AIR 1957 Tripura 47 : 1957 Cri LJ 996. In fact something curious happened in that case. Complaint was filed and after the complainant gave his evidence on appreciation of evidence the accused was discharged. Subsequently second complaint was filed. The learned Magistrate rejected the complaint on the ground that fresh case could not be started upon the same facts as had been alleged by the complainant in the earlier complaint. This order was questioned before the learned Sessions Judge who made a reference to the Judicial Commissioner under Section 438 of the Criminal Procedure Code stating that the order rejecting the complaint is unsustainable. Reference was accepted but in the process it was observed that jurisdiction to entertain a second complaint after the first is dismissed has to be exercised judiciously and not capriciously. There is no doubt about the principle. As stated earlier, one cannot go on entertaining complaints on the some allegation if once there has been full dressed trial and accused is discharged. Here, the complainant has not even been able to ventilate his grievance and at this stage the Court is moved to exercise its powers under Section 561-A of the Criminal Procedure Code. I would confess that the complainant by his conduct has lent himself open to certain criticism made by Mr. Bhatt But even keeping that in view, case for invoking Section 561-A is not made out. Therefore, Criminal Miscellaneous Application must be dismissed.
10. Order accordingly.