Shiv Shankar Singh vs State Of Bihar & Anr

Shiv Shankar Singh ...Appellant

Versus

State of Bihar & Anr. ...Respondents

J U D G M E N T

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order

dated 6.5.2009 passed by the High Court of Judicature at Patna in

Criminal Miscellaneous No. 36335 of 2008, by which the cognizance

taken by the Magistrate vide order dated 2.8.2008 against the

respondent no.2 under Section 395 of the Indian Penal Code, 1860

(hereinafter called `IPC') has been quashed.

2. Facts and circumstances giving rise to this case are that:

A. A dacoity was committed in the house of present appellant

Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004

wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits

and lots of valuable properties were looted. The police reached the

place of occurrence at about 3.00 AM i.e. about 2 hours after the

occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the

appellant naming Ramakant Singh and Anand Kumar Singh alongwith

15 other persons under Sections 396/398 IPC.

B. However, Kameshwar Singh, the real brother of the appellant

and father of Gopal Singh, the deceased, approached the court by filing

a case under Section 156 (3) of the Code of Criminal Procedure, 1973,

(hereinafter called `Cr.P.C.'). Appropriate orders were passed therein

and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004

in respect of the same incident with the allegations that the present

appellant, Bhola Singh, son of the second complainant and Shankar

Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as

the accused wanted to grab the immovable property.

C. Investigation in pursuance of both the reports ensued. When the

investigation in pursuance of both the FIRs was pending, the appellant

filed Protest Petition on 4.4.2005, but did not pursue the matter further.

The court did not pass any order on the said petition. After completing

investigation in the Report dated 6.12.2004, the police filed Final

Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case

was totally false and Gopal Singh had been killed for property disputes.

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D. After investigating the other FIR filed by Kameshwar Singh,

father of the deceased, charge-sheet was filed under Sections 302,

302/34, 506 IPC etc. on 29.8.2005 against the appellant, Bhola Singh,

son of complainant and others. The matter stood concluded after trial in

favour of the accused persons therein.

E. It was on 22.9.2005, the appellant filed a second Protest Petition

in respect of the Final Report dated 9.4.2005. After considering the

same and examining a very large number of witnesses, the Magistrate

took cognizance and issued summons to respondent Anand Kumar

Singh and others vide order dated 2.8.2008.

F. Being aggrieved, the respondent Anand Kumar Singh filed

Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated

2.8.2008 which has been allowed by the High Court on the ground that

second Protest Petition was not maintainable and the appellant ought to

have pursued the first Protest Petition dated 4.4.2005.

Hence, this appeal.

3. Shri Gaurav Agrawal, learned counsel appearing for the

appellant has submitted that the High Court failed to appreciate that the

so-called first Protest Petition having been filed prior to filing the Final

Report was not maintainable and just has to be ignored. The learned

Magistrate rightly did not proceed on the basis of the said Protest

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Petition and it remained merely a document in the file. The second

petition was the only Protest Petition which could be entertained as it

had been filed subsequent to filing the Final Report. The High Court

further committed an error observing that the Magistrate's order of

summoning the respondent No.1 was vague and it was not clear as in

which Protest Petition the order had been passed. More so, the facts of

the case in Joy Krishna Chakraborty & Ors. v. The State & Anr.,

1980 Crl. L.J. 482, decided by the Division Bench of the Calcutta High

Court and solely relied by the High Court were distinguishable as in the

said case the first Protest Petition had been entertained by the

Magistrate and an order had been passed. Protest Petition is to be

treated as a complaint and the law does not prohibit filing and

entertaining of second complaint even on the same facts in certain

circumstances. Thus, the judgment and order impugned is liable to be

set aside.

4. On the contrary, Shri Awanish Sinha and Shri Gopal Singh,

learned counsel appearing for the respondents have vehemently opposed

the appeal contending that the second petition was not maintainable

and the appellant ought to have pursued the first Protest Petition. The

High Court has rightly observed that the order of the Magistrate

summoning the respondent No.1 and others was totally vague. Even

otherwise, as the appellant himself had faced the criminal trial in respect

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of the same incident, he cannot be held to be a competent/eligible

person to file the Protest Petition. He had purposely lodged the false

FIR promptly after committing the offence himself. Therefore, the facts

of the case do not warrant any interference by this court and the appeal

is liable to be dismissed.

5. We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

6. We do not find any force in the submission made on behalf of

the respondents that as in respect of same incident i.e. dacoity and

murder of Gopal Singh, the appellant himself alongwith others is facing

criminal trial, proceedings cannot be initiated against the respondent

No.1 at his behest as registration of two FIRs in respect of the same

incident is not permissible in law, for the simple reason that law does

not prohibit registration and investigation of two FIRs in respect of the

same incident in case the versions are different. The test of sameness

has to be applied otherwise there would not be cross cases and counter

cases. Thus, filing another FIR in respect of the same incident having a

different version of events is permissible. (Vide: Ram Lal Narang v.

State (Delhi Admn.), AIR 1979 SC 1791; Sudhir & Ors., v. State of

M.P., AIR 2001 SC 826; T.T. Antony v. State of Kerala & Ors., AIR

2001 SC 2637; Upkar Singh v. Ved Prakash & Ors., AIR 2004 SC

4320; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254). 5

7. Undoubtedly, the High Court has placed a very heavy reliance

on the judgment of the Calcutta High Court in Joy Krishna

Chakraborty & Ors. (supra), wherein the Protest Petition dated

19.3.1976 was entertained by the Magistrate issuing direction to the

Officer-in-Charge of the Khanakul Police Station under Section 156(3)

Cr.P.C. to make the investigation and submit the report to the court

concerned by 10.4.1976. The Officer-in-Charge of the said police

station did not carry out any investigation on the ground that the

incident had occurred outside the territorial jurisdiction of the said

police station. The second Protest Petition filed by the same

complainant on 23.3.1976 was entertained by the learned Magistrate. In

fact, it was in this factual backdrop that the Calcutta High Court held

that the matter could have been proceeded with on the basis of the first

Protest Petition itself by the Magistrate and second Protest Petition

could not have been entertained.

8. The facts of the present case are completely distinguishable.

Therefore, the ratio of the said judgment has no application in the facts

of this case.

9. In Bhagwant Singh v. Commissioner of Police & Anr., AIR

1985 SC 1285, this Court dealt with an issue elaborately entertaining

the writ petition and accepting the submission in regard to acceptance of

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the Final Report to the extent that if no case was made out by the

Magistrate, it would be violative of principles of natural justice of the

complainant and therefore before the Magistrate drops the proceedings

the informant is required to be given hearing as the informant must

know what is the result of the investigation initiated on the basis of first

FIR. He is the person interested in the result of the investigation. Thus,

in case the Magistrate takes a view that there is no sufficient ground for

proceeding further and drops the proceedings, the informant would

certainly be prejudiced and therefore, he has a right to be heard.

10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432,

this Court held that the second complaint lies if there are some new

facts or even on the previous facts if the special case is made out.

Similarly, in Pramatha Nath Talukdar v. Saroj Ranjan

Sarkar, AIR 1962 SC 876, this Court has held as under:

"An order of dismissal under Section 203 of the

Criminal Procedure Code, is, however, 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

misunderstanding 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. It cannot be said to

be in the interest of justice that after a decision has

been given against the complainant upon a full

consideration of his case, he or any other person

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should be given another opportunity to have his

complaint enquired into."

11. After considering the aforesaid judgment along with various

other judgments of this Court, in Mahesh Chand v. B. Janardhan

Reddy & Anr., AIR 2003 SC 702, this Court held as under:

"..It is settled law that there is no statutory bar in filing

a second complaint on the same facts. In a case where

a previous complaint is dismissed without assigning

any reasons, the Magistrate under Section 204 CrPC

may take cognizance of an offence and issue process if

there is sufficient ground for proceeding...."

In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar

view has been re-iterated by this Court.

12. In Jatinder Singh & Ors. v. Ranjit Kaur, AIR 2001 SC 784,

this Court held that dismissal of a complaint on the ground of default

was no bar for a fresh Complaint being filed on the same facts.

Similarly in Ranvir Singh v. State of Haryana, (2009) 9

SCC 642, this Court examined the issue in the backdrop of facts that the

complaint had been dismissed for the failure of the complainant to

put in the process fees for effecting service and held that in such a fact-

situation second complaint was maintainable.

13. Thus, it is evident that the law does not prohibit filing or

entertaining of the second complaint even on the same facts provided

the earlier complaint has been decided on the basis of insufficient

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material or the order has been passed without understanding the nature

of the complaint or the complete facts could not be placed before the

court or where the complainant came to know certain facts after

disposal of the first complaint which could have tilted the balance in his

favour. However, second complaint would not be maintainable wherein

the earlier complaint has been disposed of on full consideration of the

case of the complainant on merit.

14. The Protest Petition can always be treated as a complaint and

proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case

there is no bar to entertain a second complaint on the same facts, in

exceptional circumstances, the second Protest Petition can also similarly

be entertained only under exceptional circumstances. In case the first

Protest Petition has been filed without furnishing the full

facts/particulars necessary to decide the case, and prior to its

entertainment by the court, a fresh Protest Petition is filed giving full

details, we fail to understand as to why it should not be maintainable.

15. The instant case is required to be decided in the light of the

aforesaid settled legal propositions.

Order dated 2.8.2008 passed by the Magistrate concerned is

based on the depositions made by the appellant-Shivshankar Singh, and

a very large number of witnesses, namely, Sonu Kumar Singh, Suman

Devi, Nirmala Devi, Ganesh Kumar, Udai Kumar Ravi, Ram Achal

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Singh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr.

Narendra Kumar. More so, the record of the Sessions Trial No. 866 of

2005, wherein the appellant himself has been put to trial was also

summoned and examined by the learned Magistrate. Thus, the

Magistrate further took note of the fact that for the same incident, trial

was pending in another court. After appreciating the evidence of the

complainant and other witnesses deposed in the enquiry, the learned

Magistrate passed the following order :

"On the basis of aforesaid discussion, I find that

there are materials available on the record to

proceed against the accused person. A prima-facie

case under Section 395 IPC has been made out

against all the accused person of this case. O/c is

directed to issue summons on filing of the requisite.

Put up the record on 13.8.2008 for filing of the

requisites."

16. The High Court without taking note of the aforesaid evidence

set side the order of the Magistrate on a technical ground that the

second Protest Petition was not maintainable without considering the

fact that the first Protest Petition having been filed prior to filing of the

Final Report was not competent. More so, the High Court without any

justification made the following remarks:

"The Court can only record that the learned Judicial

Magistrate has not conducted himself in a fair

manner

because he has intentionally left the impugned order

vague as to which protest petition he was acting

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upon, so that advantage may accrue to Opposite

Party No.2."

17. In our opinion, there was no occasion for the High Court to

make such sweeping remarks against the Magistrate and the same

remain unjustified and unwarranted in the facts and circumstances of

the case.

18. In view of the above, the appeal succeeds and is allowed. The

order impugned of the High Court is set aside and the order of the

Magistrate is restored. Respondent No.1 is directed to appear before the

Magistrate on 1.12.2011 and the learned Magistrate is requested to

proceed in accordance with law. However, we clarify that any

observation made in this judgment shall not adversely prejudice the

cause of the respondent to seek any further relief permissible in law as

the said observations have been made only to decide the controversy

involved herein.

............................J.

(Dr. B.S. CHAUHAN)

.............................J.

(T.S. THAKUR)

New Delhi,

November 22, 2011

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