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Basudeo v. State Of U.P.

Allahabad High Court
Oct 28, 1983
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Criminal Misc. Appln. No. 6432 of 1982

JUDGES

R.K Shukla, J.

ACTS

No Acts

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Smart Summary (Beta)

Judicial Opinion Summary: Tulsi Ram v. Basdeo (Application under Section 482 Cr. P.C.)

Factual and Procedural Background

This petition under Section 482 Cr. P.C. was filed by nine applicants seeking quashing of a complaint filed by opposite party No. 2 (Tulsi Ram) and the Chief Judicial Magistrate (CJM), Kanpur's order dated 11 January 1982 which summoned the applicants for an offence under Section 307 IPC in Case No. 1225 of 1981 (Tulsi Ram v. Basdeo). The petition also sought quashing of the Sessions Judge's order dated 18 September 1982 dismissing a revision filed against the CJM's order.

Brief chronology as recorded in the opinion:

  • An occurrence took place in village Pachhalhar. An FIR was lodged by Basdeo (one of the applicants).
  • Tulsi Ram (opposite party No. 2) lodged a cross-FIR at Bhugnipur police station; it was registered as Crime No. 111-A of 1981 under Section 307 IPC.
  • After police investigation a final report in that cross-FIR was placed before the CJM. Tulsi Ram filed a protest petition with three affidavits of witnesses. The CJM perused the case diary and by order dated 24-9-1981 summoned eight persons under Section 307 IPC.
  • The final report was nevertheless accepted so far as the nine applicants were concerned. Tulsi Ram's application dated 24-9-1981 was rejected by the CJM on 15-10-1981.
  • Tulsi Ram later filed a formal complaint in the court of the CJM (registered as Case No. 1225 of 1981 under Sections 147, 148, 149 and 307 IPC). After examining the complainant and ten witnesses pursuant to Sections 200 and 202 Cr.P.C., the CJM, by order dated 11-1-1982, summoned all nine applicants under Section 307 IPC (dates for summons appear in the record as 2-2-1982 and 3-2-1982 in different paragraphs).
  • Only one applicant, Basdeo, preferred a revision against the CJM's order dated 11-1-1982; the II Additional Sessions Judge, Kanpur dismissed that revision by order dated 18-9-1982.
  • All nine applicants subsequently filed the present petition under Section 482 Cr.P.C. to quash the complaint and the impugned orders. The application was ultimately dismissed by the court and the stay order dated 4-10-1982 was vacated.

Legal Issues Presented

  1. Whether the complaint filed by opposite party No. 2 and the CJM's order dated 11-1-1982 summoning the applicants under Section 307 IPC could be quashed on the ground that an earlier protest petition/proceeding precluded such subsequent proceedings.
  2. Whether the Magistrate had taken cognizance under Section 190(1)(a) Cr.P.C. in relation to the earlier protest petition (and, if so, whether that precluded the later complaint).
  3. Whether a second complaint on substantially the same facts is barred after proceedings on an earlier protest petition or other preliminary action (and if not, in what circumstances a second complaint may be entertained).
  4. Whether the Sessions Judge erred in dismissing the revision filed by applicant Basdeo against the CJM's order of 11-1-1982.

Arguments of the Parties

Applicants' (Petitioners') Arguments

  • The Magistrate had already applied his mind to the final report and had, after perusing the case diary, affidavit and protest petition, refused to summon the applicants (or had effectively taken a judicial decision not to proceed against them).
  • The order dated 24-9-1981 was a judicial order by which the Magistrate summoned eight persons and did not summon the applicants; therefore it was not open for the Magistrate to entertain a fresh complaint on the same matter.
  • Reliance was placed on certain authorities (Ramgiri v. Ravi Saran Singh; Begam Rai v. The State; Nirmal Singh v. State of U.P.) to support the contention that the subsequent complaint/proceeding was impermissible.

Opposite Party No. 2 (Respondent) Arguments

  • The Magistrate had not treated the protest petition as a formal complaint; thus the applicants' contention had no force.
  • Alternatively, even if the protest petition amounted to a complaint, the later complaint was not barred because the Magistrate took cognizance properly under Section 190(1)(a) after examining the complainant and ten witnesses under Sections 200 and 202 Cr.P.C., and thereafter summoned the applicants; the procedure followed was proper.
  • Reliance was placed on a set of Supreme Court decisions and other authorities (including Roop Chand v. State of Bihar; Hareram Satpati v. Tika Ram Agarwal; R.R. Chari v. State of U.P.; Vadilal Panchal v. ...; H.S. Bains v. The State) to support the legitimacy of the Magistrate's subsequent proceedings and the circumstances permitting a second complaint.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in this Opinion
Ramgiri v. Ravi Saran Singh (AIR 1935 All 883) This opinion did not specify the precise legal rule cited from the case; applicants relied on it. The court held it distinguishable on facts: Ramgiri concerned a regular complaint of civil nature where the Magistrate himself made a local inquiry and was satisfied the complaint was not true; the present case involved an offence under Section 307 IPC, so Ramgiri did not assist the applicants.
Begam Rai v. The State (AIR 1951 Pat 154) This opinion did not specify the precise legal rule cited from the case; applicants relied on it. The court held it distinguishable: Begam Rai involved a civil nature dispute with no regular complaint before the Magistrate, and proceedings were quashed; the present case had a regular complaint and ten witnesses were produced, so Begam Rai did not help the applicants.
Nirmal Singh v. State of U.P. (1979 All WC 16 : 1971 Cri LJ 226) This opinion did not specify the precise legal rule cited from the case; applicants relied on it. The court observed that while it did not dispute the legal proposition in Nirmal Singh, that decision was not relevant because in the present case the Magistrate had not applied his mind for the purpose of taking cognizance under Section 190(1)(a) in relation to the protest petition.
R.R. Chari v. State of U.P. (AIR 1951 SC 207) Explained what "taking cognizance" under Section 190(1)(a) Cr.P.C. entails: the Magistrate must apply his mind to the petition for the purpose of proceeding under Chapter XV (i.e., Sections 200 and 202), not merely take other actions such as ordering investigation under Section 156(3). The court relied on R.R. Chari to conclude that mere consideration of a protest petition for other kinds of action does not amount to taking cognizance; here the Magistrate had not treated the protest petition as a complaint and therefore had not taken cognizance under Section 190(1)(a).
Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876) Establishes that an order of dismissal under Section 203 Cr.P.C. is not an absolute bar to entertaining a second complaint; a second complaint may be entertained in exceptional circumstances (e.g., previous order passed on incomplete record, misunderstanding, manifestly absurd/unjust/foolish, or where new facts which could not with reasonable diligence have been brought earlier are adduced). The court applied this principle (and the later authority that followed it) to hold that a second complaint was not barred in the present case because ten witnesses were examined in the subsequent complaint and the evidence was not the same as earlier; therefore the second complaint could be validly entertained.
Dr. S.S. Khanna v. Chief Secretary, Patna ((1983) 3 SCC 42 : AIR 1983 SC 595) This opinion did not reproduce the full rule but explicitly followed the principle in Pramatha Nath Talukdar regarding when a second complaint may be entertained. The court cited this authority as having followed Pramatha Nath Talukdar and used it to support the proposition that a second complaint may be entertained in appropriate (extraordinary) cases; applied to find the second complaint in the present matter not barred.
Roop Chand v. State of Bihar (AIR 1968 SC 117 at 124) This opinion did not specify the precise legal rule cited from the case; respondent relied on it. The case was cited by the respondent in support of the contention that the Magistrate's procedure was correct; the opinion does not record a detailed analytical reliance beyond noting it was cited.
Hareram Satpati v. Tika Ram Agarwal ((1978) 4 SCC 58 : AIR 1978 SC 1568) This opinion did not specify the precise legal rule cited from the case; respondent relied on it. The case was cited by the respondent; the opinion records the citation but does not elaborate a specific point extracted from it.
Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar (AIR 1960 SC 1113) This opinion did not specify the precise legal rule cited from the case; respondent relied on it. The case was cited by the respondent; the opinion records the citation but does not identify a specific proposition taken from it for the court's analysis.
H.S. Bains v. The State ((1980) 4 SCC 631 : AIR 1980 SC 1883) This opinion did not specify the precise legal rule cited from the case; respondent relied on it. The case was cited by the respondent in support of the procedural correctness of the Magistrate's actions; the opinion records the citation without elaborating a specific principle drawn from it.

Court's Reasoning and Analysis

The court's reasoning proceeds in discrete steps based on the record and the authorities cited:

  1. Availability of the protest petition in the record: The court observed that none of the parties had annexed the protest petition and accompanying affidavits to the petition papers; therefore the court could not conclusively determine whether the protest petition satisfied the definition of "complaint" under Section 2(d) of the Criminal Procedure Code 1973.
  2. Legal requirement for taking cognizance under Section 190(1)(a): Relying on R.R. Chari v. State of U.P. (AIR 1951 SC 207), the court stated that "taking cognizance" under Section 190(1)(a) requires the magistrate not only to apply his mind to the petition but to do so for the purpose of proceeding under the scheme of Chapter XV (i.e., taking steps under Sections 200 and 202 Cr.P.C.). If the magistrate applies his mind only to take other kinds of action (for example ordering an investigation under Section 156(3) or issuing search warrants), he cannot be said to have taken cognizance under Section 190(1)(a).
  3. Application of that principle to the facts: On the facts, the court concluded the Magistrate had not treated the protest petition as a complaint; therefore he had not taken cognizance under Section 190(1)(a) of the earlier petition. The subsequent complaint filed by Tulsi Ram (opposite party No. 2) was therefore not barred by any prior cognizance based on the protest petition.
  4. Adequacy of the subsequent complaint and evidence: The court examined the CJM's order dated 11-1-1982 and noted that after examining the complainant and ten witnesses under Sections 200 and 202 Cr.P.C., the Magistrate was satisfied there were sufficient grounds to proceed (specifically, that a gun was fired by one of the applicants, and that the gun had been snatched by the complainant and deposited with police). On that basis the Magistrate issued summons under Section 307 IPC to all nine applicants.
  5. Rule on second complaints: The court relied on the principle from Pramatha Nath Talukdar and its affirmation in Dr. S.S. Khanna that an order of dismissal under Section 203 Cr.P.C. is not an absolute bar to entertaining a second complaint; a second complaint may be entertained in exceptional circumstances (for example, where the previous order was based on an incomplete record, a misunderstanding, or where new facts which could not with reasonable diligence have been produced earlier are presented).
  6. Application of that rule to the present record: The respondent's counter-affidavit averred (paras. 4 and 9) that the protest petition had not been fully considered (affidavit not perused) and that, in the subsequent complaint, ten witnesses were examined whose evidence was not the same as earlier. The court found that this constituted a sufficient factual basis to treat the later complaint as not barred by the earlier proceedings.
  7. Distinguishing applicant-cited authorities: The court considered the authorities cited for the applicants (Ramgiri, Begam Rai and Nirmal Singh) and explained why they were distinguishable on facts — chiefly because Ramgiri and Begam Rai concerned civil-nature disputes or different factual matrices, and Nirmal Singh was not applicable because in the present case the Magistrate had not been shown to have applied his mind for taking cognizance under Section 190(1)(a).
  8. Procedural outcome: The court observed that only one applicant (Basdeo) challenged the CJM's order by revision and that the Sessions Judge rightly dismissed that revision. The court found no abuse of process in the Magistrate's subsequent proceedings under the complaint and therefore dismissed the Section 482 petition.

Holding and Implications

Core Ruling: APPLICATION DISMISSED.

The court dismissed the petition under Section 482 Cr.P.C. seeking quashing of the complaint and the CJM's order dated 11-1-1982 summoning the applicants under Section 307 IPC, and upheld the Sessions Judge's dismissal of the revision. The stay order dated 4-10-1982 was vacated.

Direct consequences:

  • The summons issued by the Chief Judicial Magistrate against the nine applicants under Section 307 IPC remain valid and the challenge to quash them has failed.
  • Only one applicant had challenged the CJM's order by revision; that revision was dismissed by the Sessions Judge and that dismissal was not disturbed by this court.

Broader implications:

  • The court applied established principles (notably R.R. Chari and the line of authorities exemplified by Pramatha Nath Talukdar and Dr. S.S. Khanna) to reiterate that: (a) a magistrate must apply his mind for the specific purpose of proceeding under Chapter XV for there to be "cognizance" under Section 190(1)(a), and (b) a second complaint is not invariably barred — it may be entertained in exceptional circumstances such as where fresh and material evidence is produced or where earlier proceedings were conducted on an incomplete record.
  • The opinion does not purport to lay down any new legal precedent; it applies existing authorities to distinguish earlier decisions relied upon by the applicants and to uphold the Magistrate's procedural course in the particular factual matrix of this case.

Note: All statements in this summary are drawn exclusively from the provided opinion text. No fact or legal proposition has been invented or inferred beyond what the opinion itself states.

Show all summary ...

1. By this application under S. 482 Cr. P.C 9 applicants have prayed for quashing the complaint filed by opposite party No. 2 and order dt. 11 the January, 1982 of the Chief Judicial Magistrate, Kanpur summoning the applicants for an offence under S. 307 IPC. on the complaint pending in the court of Chief Judicial Magistrate, Kanpur (Case No. 1225 of 1981), Tulsi Ram v. Basdeo. He has further prayed for quashing the order of Sessions judge dt. 18th September, 1982 dismissing the revision filed against that order.

2. Brief facts of the case are that there was an occurrence in village Pachhalhar and first information report was lodged by Basdeo applicant. A cross first information report was also lodged by Tulsi Ram, opposite party No. 2, against 7 persons at police station Bhugnipur and a case was registered as crime No. 111-A of 1981 under S. 307 IPC. After investigation, the police submitted a final report in this cross first information report which was placed before the Chief Judicial Magistrate Kanpur, on which the complainant Tulsi Ram appeared and filed a protest petition accompanied by three affidavits of the witnesses. The Chief Judicial Magistrate perused the case diary and summoned 8 persons under S. 307 IPC. vide his order dt. 24-9-1981. However, the final report was accepted so far as 9 applicants are concerned. An application was also moved on 24th Sept. 1981 by Tulsi Ram, opposite party No. 2 which was rejected by the Chief Judicial Magistrate on 15th Oct. 1981. Later on, Tulsi Ram, opposite party No. 2 filed a complaint in the court of the Chief Judicial Magistrate. Kanpur on which Case No. 1225 of 1981 under S. 147, 148, 149 and 307 IPC. was registered. After examining the complainant opposite party No. 2 on oath and ten witnesses, the Chief Judicial Magistrate vide his order dt. 11th Jan. 1982 summoned all the nine applicants under S. 307 IPC. for 3-2-1982. Thereafter a revision was preferred by only one applicant, Basdeo against the aforesaid order dt. 11th Jan. 1982 summoning the applicants. The II Additional Sessions Judge kanpur has dismissed the said revision by his order dt. 18th September, 1982, which is Annex. III to this application. Now 9 applicants have filed this petition under S. 482 Cr. PC for quashing the complaint and aforesaid orders of the Magistrate and Sessions Judge.

3. The learned counsel for the applicants contended that the protest petition was filed before the Magistrate who had applied his mind on the final report submitted by the police and refused to summon the applicants after perusing the case diary, affidavit and protest petition. He also contended that the application dt. 24th September, 1981 moved by opposite party No. 2 on the same day, was also rejected by the Magistrate. According to him, the order dt. 24th September, 1981 was a judicial order, by which he only summoned 8 persons and did not summon the applicants. It was not open to the Magistrate to entertain the complaint on the same matter. In support of his contention, he relied on following cases Ramgiri v. Ravi Saran Singh (1935-1936 Cri. LJ 1035) (AIR 1935 All 883), Begam Rai v. The State (1952 Cri LJ 473) : (AIR 1951 Pat 154) and Nirmal Singh v. State of U.P (1979 All WC 16) : (1971) Cri LJ 226).

4. On the other hand, counsellor the opposite party urged that the Magistrate has not treated the protest petition as a complaint and, therefore, the argument of the other side has no force. In the alternative, he contended that even if the protest petition is treated to be a complaint, the second complaint is not barred on some additional facts. He has pointed out that after taking the cognizance of the complaint under S. 190(1)(a) Cr. P.C the Magistrate has examined ten witnesses and thereafter he has summoned the applicants. There is no thing wrong in the procedure adopted by the Magistrate and this application deserves dismissal. In support of his submissions, he has relied upon the following cases:—

5. Roop Chand v. State of Bihar (AIR 1968 SC 117 at 124); Hareram Satpati v. Tika Ram Agarwal ((1978) 4 SCC 58 : AIR 1978 SC 1568), R.R Chari v. State of Uttar Pradesh (AIR 1951 SC 207), Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar (AIR 1960 SC 1113) and H.S Bains v. The State ((1980) 4 SCC 631 : AIR 1980 SC 1883).

6. None of the parties has annexed the protest petition along with the affidavit, therefore, it cannot be said whether the protest petition fulfilled the ingredients of ‘complain’ defined under S. 2(d) of the Criminal PC 1973. The Magistrate cannot act upon the protest petition under S. 190(1)(a) unless it amounts to a complaint within the meaning of S. 2(d) of the Code.

7. Even assuming that the protest petition filed in the instant case fulfilled the requirement of the definition of word ‘complaint’ under Cri. PC and the Magistrate applied his mind to the contents of the petition, it cannot be said that he has taken cognizance under S. 190(1)(a) Cr. P.C For this he must not only have applied his mind to the contents of the protest petition but he must have done so, for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of Chapter XV. This view finds full support from the decision of the Supreme Court in the case of R.R Chari v. State of U.P (AIR 1951 SC 207) in which the view of Calcutta High Court has been upheld in the following, words (at p. 210):—

“What is taking cognizance has not been defined in the Cr. P.C and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/s 190(1)(a) Cr. P.C he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceedings u/s. 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g ordering investigation, u/s. 156(3) or issuing search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.”

8. From the facts and circumstances of the present case, it is quite clear that the Magistrate has never treated the protest petition as a complaint, therefore, the subsequent cognizance under S. 190(1)(a) on the proper complaint filed by opposite party No. 2 after examining the complainant and ten witnesses under Ss. 200 and 202 Cr. P.C cannot be said to be illegal. It is clear from the order dt. 11-1-1982 of the Magistrate that he was satisfied after seeing the complaint and the evidence adduced under S. 200/202, Cr. P.C that the gun was fired by one of the present applicants and the said gun having been snatched by complainant was deposited with police. In view of such evidence adduced, the Magistrate was satisfied that sufficient grounds existed to proceed further against the applicant. Hence summonses were issued against all the applicants Nos. 1 to 9 under S. 307 IPC for 2-2-1982. No revision was filed against this order by applicants Nos. 2 to 9. Only applicant No. 1 Basdeo filed a revision before the learned Sessions Judge which has been rightly rejected by him. There is no abuse of the process of the court.

9. Even if the protest petition is treated as a complaint, the second complaint is not barred. The position of law is well settled by the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876), which has been further followed in Dr. S.S Khanna v. Chief Secretary Patna ((1983) 3 SCC 42 : AIR 1983 SC 595) in the following words (at p. 598):

“An order of dismissal under S. 203, 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 of foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced.

As rightly commented by the Law Commission, the circumstances mentioned by the Court in the above passage cannot be exhaustive of all the circumstances when a second complaint can be entertained. A second complaint may be entertained in other appropriate cases too though it should be for extraordinary reasons.”

10. In para. 4 of the counter-affidavit of opposite party No. 2, it is alleged that although protest petition was filed but no proper opportunity was afforded to the complainant to explain the case and the said affidavit was not perused. From para 9 of the counter-affidavit, it is also clear that on complaint now ten witnesses have been examined and evidence is not the same. This evidence was not before the Magistrate when he took cognizance against the eight persons under S. 190(1)(b) on 24-9-1981. Under these circumstances even if it is treated as the second complaint, it is not barred.

11. The cases cited by the learned counsel for the applicants are distinguishable on facts. Ramgiri's case (AIR 1935 All 883) (supra) started on a regular complaint. It was a case of civil nature in which the Magistrate himself made a local enquiry and was himself satisfied that the complaint was not true. Therefore, this High Court did not interfere in exercise of its revisional jurisdiction on the ground of irregularities in the procedure. It was a dispute of civil nature and, therefore, this High Court observed that the complainant can seek redress by way of damages in civil court. In the instant case the offence is under S. 307 IPC. So this case does not help the applicants.

12. So far as the case of Begam Rai (AIR 1952 Pat 154) (supra) is concerned, that was also a case of civil nature. In that case there was no regular complaint before the Magistrate. Therefore, further proceedings were quashed. In the instant case, there is a regular complaint and ten witnesses have been produced and thereafter the applicants have been summoned for an offence under S. 307 IPC. So far as the case of Nirmal Singh v. State of U.P (1979 All WC 16) : (1979 Cri LJ 226) is concerned, there is no dispute regarding the legal proposition laid down, but in the case under consideration the Magistrate has not applied his mind for the purpose of taking cognizance under S. 190(1)(a). Therefore, this case is also not relevant to the point under consideration.

13. As I have held above that the Magistrate has never treated the protest petition as a complaint, therefore, subsequent complaint filed by opposite party No. 2 is not barred. In the subsequent complaint, ten witnesses have been examined. It cannot be said that the evidence is the same. Under the circumstances this application has no merit and deserves dismissal. The application is accordingly dismissed. The stay order dt. 4-10-1982 is vacated.

14. Application dismissed.

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