15 October 2004
Supreme Court
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POONAM CHAND JAIN Vs FAZRU

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000371-000371 / 2004
Diary number: 22485 / 2002
Advocates: SUSHIL KUMAR JAIN Vs ATTAR SINGH


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CASE NO.: Appeal (crl.)  371 of 2004

PETITIONER: Poonam Chand Jain & Anr.

RESPONDENT: Fazru

DATE OF JUDGMENT: 15/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

An interesting point is raised in this appeal as to the effect of  dismissal of a complaint filed under Section 200 of the Code of  Criminal Procedure, 1973 (in short the ’Code’) and whether second  complaint can be filed.   

Brief reference to the factual aspects as contended by the  appellant would suffice.

Respondent-Fazru (hereinafter referred to as the ’complainant’)  filed a complaint no.152 on 10.7.1992 which was dismissed by order  dated 13.1.1994 by the Judicial Magistrate, 1st Class, Nuh, Haryana.  On  12.2.1996 the complainant filed a revision before the Punjab and  Haryana High Court which was numbered as Criminal Revision No.43 of  1995.  The said revision petition was dismissed by order dated  12.2.1996.  Prior to the institution of a complaint 4 suits had been  filed by the appellants’ companies and other appellants in 1989 which  were decreed by order dated 24.10.1997. In all these cases complainant- Fazru was defendant no.1.  In 1992 the complainant filed a Civil Suit  No. 90 of 1992 in the Court of Civil Judge, Junior Division, Nuh. The  same was dismissed for default on 7.10.1997. Complainant filed the  complaint which forms subject matter of present appeal on 25.11.1997.  According to the appellants process was directed to be issued by the  learned Magistrate on 9.1.1999.  Such action was assailed by filing a  revision.  By judgment dated 9.7.1999, learned Additional Sessions  Judge, Gurgaon, allowed the revision and dismissed the complaint.  It  was, inter alia, held that protection under Section 300 of the Code was  not available to the complainant. Aggrieved by said order, the  complainant filed a revision petition no. 552 of 2000 before the High  Court. By the impugned order the High Court allowed the revision.  Learned Judge held that if the present appellants had any grievance  they could seek review of the summoning order with a view to get  discharged in view of the provision of Section 245 of the Code.   

In support of the appeal, Mr. Altaf Ahmad, learned senior  counsel, submitted that the second complaint was nothing but a  repetition of the averments of the first complaint and was in essence a  fresh attempt to re-open the matters which have attained finality. The  order of learned Additional Sessions Judge was justified and the High  Court should not have interfered with it.  It was pointed out with  reference to various averments in the first complaint filed on  10.7.1992 and the second one filed on 25.11.1997 that both are founded  on the same allegations.  The averments were merely repeated and,

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therefore, no case for entertaining the second complaint was made out.   That being so, the issuance of process was illegal and the learned  Additional Sessions Judge had rightly interfered with it.  The High  Court was not justified in saying that present appellant should seek  discharge in terms of Section 245 of the Code. It was submitted that  though the second complaint can be entertained, the same has to be on  establishing exceptional circumstances and not as a matter of routine.   

In response, learned counsel for the respondent submitted that it  is not correct to contend as done by the appellants that the averments  were mere repetitions.  Different persons were arrayed as accused in  the complaint and the alleged offences were different.   

A birds’ eye view of some of the decisions throwing light on the  controversy needs to be taken.  In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC  876), Kapur, J. speaking for himself and Hidayatullah, J. as he then  was, observed: (at p.899, para 48)   "Therefore, if he has not misdirected himself as to  the scope of the enquiry made under S. 20, Criminal  Procedure Code, and has judicially applied his mind  to the material before him and then proceeds to make  his order it cannot be said that he has acted  erroneously. 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, i.e., 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 interests of justice that after a decision  has been given against the complainant upon a full  consideration of his case, he or any other person  should be given another opportunity to have his  complaint enquired into Allah Ditta v. Karam Baksh  (AIR 1930 Lahore 879); Ram Narain Chaubey v.  Panachand Jain ((AIR 1949 Pat 256); Hansabai Sayaji  Payagude v. Ananda Ganuji Payagude (AIR 1949 Bom  384); Doraisami Aiyar v. Subramania Aiya (AIR 1918  Mad 484). In regard to the adducing of new facts for  the bringing of a fresh complaint the Special Bench  in the judgment under appeal did not accept the view  of the Bombay High Court or the Patna High Court in  cases above-quoted and adopted the opinion of  Maclean, C.J. in Queen Empress v. Dolegobind Dass  (ILR (1901) 28 Cal 211), affirmed by a Full Bench in  Dwarka Nath Mondul v. Beni Madhab Banerjee (ILR  (1901) 28 Cal 652). It held, therefore, that a fresh  complaint can be entertained where there is manifest  error, or manifest miscarriage of justice in the  previous order or when fresh evidence is  forthcoming."  S.K. Das, J. delivering the minority judgment also observed:  (AIR  p.887, para 21)  "The question was then considered by a Full Bench of  the Calcutta High Court in Dwarka Nath Mondul v. Beni  Madhab Banerjee (ILR (1901) 28 Cal 652) and it was  held by the Full Bench (Ghose, J. dissenting) that a  Presidency Magistrate was competent to rehear a  warrant case triable under Ch. XXI of the Code of  Criminal Procedure in which he had earlier discharged

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the accused person. Nilratan Sen’s case (ILR (1896)  23 Cal 983) and Kamal Chandra Pal’s case (ILR (1897)  24 Cal 286) were referred to in the arguments as  summarized in the report, but the view expressed  therein was not accepted. Dealing with the question  Prinsep, J. said:  

"There is no bar to further proceedings  under the law, and therefore, a  Magistrate to whom a complaint has been  made under such circumstances, is bound  to proceed in the manner set out in S.  200, that is, to examine the complaint,  and, unless he has reason to distrust  the truth of the complaint, or for some  other reason expressly recognized by  law, such as, if he finds that no  offence had been committed, he is bound  to take cognizance of the offence on a  complaint, and unless he has good reason  to doubt the truth of the complaint, he  is bound to do justice to the  complainant, to summon his witnesses and  to hear them in the presence of the  accused."  The same view was expressed by the Madras High Court  Malayil Kottayil Koyassan Kutty, In re (AIR 1918 Mad  494) and it was observed that there was nothing in  law against the entertainment of a second complaint  on the same facts on which a person had already been  discharged, inasmuch as a discharge was not  equivalent to an acquittal. This view was reiterated  in Kumariah Naicker v. Chinna Naicker (AIR 1946 Mad  167), where it was held that the fact that a previous  complaint had been dismissed under S. 203 of the Code  of Criminal Procedure was no bar to the entertainment  of a second complaint. In Hansabai Sayaji Payagde v.  Ananda Ganuji Payagude (AIR 1949 Bom 384) the  question was examined with reference to a large  number of earlier decisions of several High Courts on  the subject and it was held that there was nothing in  law against the entertainment of a second complaint  on the same facts. The same view was also expressed  in Ram Narain Chaubey  v. Panachand Jain (AIR 1949  Pat 256); Rama Nand v. Sheri (AIR 1934 All 87) and  Allah Ditta v. Karam Bakhsh (AIR 1930 Lah 879) , in  all these decisions it was recognized further that  though there was nothing in law to bar the  entertainment of a second complaint on the same  facts, exceptional circumstances must exist for  entertainment of a second complaint when on the same  allegations a previous complaint had been dismissed  ......I accept the view expressed by the High Courts  that there is nothing in law which prohibits the  entertainment of a second complaint on the same  allegations when a previous complaint had been  dismissed under Section 203 of the Code of Criminal  Procedure. I also accept the view that as a rule of  necessary caution and of proper exercise of the  discretion given to a Magistrate under S. 204(1) of  the Code of Criminal Procedure, exceptional  circumstances must exist for the entertainment of a  second complaint on the same allegations; in other  words, there must be good reasons why the Magistrate  thinks that there is "sufficient ground for

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proceeding" with the second complaint, when a  previous complaint on the same allegations was  dismissed under Section 203 of the Code of Criminal  Procedure."  The learned Judge posed the question as to what would be those  exceptional circumstances. Noticing the decisions in Queen Empress v.  Dolegobind Dass, ((1901) ILR 28 Cal 211), In re : Koyassan Kutty, (AIR  1918 Mad 494), Kumariah v. Chinna Naicker, (AIR 1946 Mad 167), and  several other decisions, the learned Judge came to the conclusion :  "It will be noticed that in the test thus laid down  the exceptional circumstances are brought under three  categories; (1) manifest error, (2) manifest  miscarriage of justice, and (3) new facts which the  complainant had no knowledge of or could not with  reasonable diligence have brought forward in the  previous proceedings. Any exceptional circumstances  coming within any one or more of the aforesaid three  categories would fulfil the test. In Ram Narain v.  Panachand Jain (AIR 1949 Pat 256) it was observed  that an exhaustive list of the exceptional  circumstances could not be given though some of the  categories were mentioned. One new category mentioned  was where the previous order of dismissal was passed  on an incomplete record or a misunderstanding of the  nature of the complaint. This new category would  perhaps fall within the category of manifest error or  miscarriage of justice.  It appears to me that the test laid down in the  earliest of the aforesaid decisions. Queen Empress v.  Dolegobinda Dass is really wide enough to cover the  other categories mentioned in the later decisions.  Whenever a Magistrate is satisfied that the previous  order of dismissal was due to a manifest error or has  resulted in a miscarriage of justice, he can  entertain a second complaint on the same allegations  even though an earlier complaint was dismissed under  S. 203 of the Code of Criminal Procedure ..."  

Yet again in Bindeshwari Prasad Singh v. Kali Singh (1977 SCC (Crl.)  33) this Court followed Pramatha Nath Talukdar’s case (supra) holding  :-  "..... it is now well-settled that a second complaint  can lie only on fresh facts or even on the previous  facts only if a special case is made out ..."

As was observed in Mahesh Chand v. B. Janardhan Reddy and Anr.  (2003 (1) SCC 734), 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 reason, the Magistrate under Section  204 Cr.P.C. may take cognizance of an offence and issue process if  there is sufficient ground for proceeding.  But the second complaint on  the same facts could be entertained only in exceptional circumstances,  namely, where the previous order was passed on an incomplete record or  on a misunderstanding of the nature of complaint or it was manifestly  absurd, unjust or where new facts which could not, with reasonable  diligence, have been brought on record in the previous proceedings have  been adduced.  The second complaint could be dismissed after a decision  has been given against the complainant in previous matter upon a full  consideration of his case.  Further second complaint on the same facts  would be entertained only in exceptional circumstances, namely,     where previous order was passed on an incomplete record or on  misunderstanding of the complaint or it was manifestly absurd or  unjust.    

At this juncture, it will be also necessary to take note of what

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this Court has said in Subramanium Sethuraman v. State of Maharashtra  and Anr. (2004 (6) Supreme 662). It was laid down in the said decision  that it is impermissible for the Magistrate to re-consider his decision  to issue process in the absence of any specific provision to recall  such order.

In Adalat Prasad v. Rooplal Jindal and Ors. (2004 (7) SCALE 137),  this Court considered the view of the Court in K.M. Mathew v. State of  Kerala and Anr. (1992 (1) SCC 217) and held that the  issuance of  process under Section 204 is a preliminary step in the stage of trial  contemplated in Chapter XX of the Code.  Such an order made at a  preliminary stage being an interlocutory order, same cannot be reviewed  or reconsidered by the Magistrate, there being no provision under the  Code for review of an order by the same Court.  Hence, it is  impermissible for the Magistrate to reconsider his decision to issue  process in the absence of any specific provision to recall such order.  In that line of reasoning this Court in Adalat Prasad’s case (supra)  held:

"Therefore, we are of opinion that the view of  this Court in Mathew’s case (supra) that no specific  provision is required for recalling and issuance  order amounting to one without jurisdiction, does not  laid down the correct law."

From the above, it is clear that the larger Bench of this Court  in Adalat Prasad’s case (supra) did not accept the correctness of the  law laid down by this Court in K.M. Mathew’s case (supra).                                                      Learned counsel for the respondent submitted that the order to  issue process is an interlocutory order, and therefore revision before  the Additional Sessions Judge was not maintainable.  Learned counsel  for the appellants with reference to certain observations in Rajendra  Kumar Sitaram Pande and Ors. v. Uttam and Anr. (1993 (3) SCC 134) and  K.K. Patel and Anr. v. State of Gujarat and Anr. (2000 (6) SCC 195)  submitted that this Court has held that issuance of process or charges  is not an interlocutory order. In both these cases reference was made  to V.C. Shukla v. State through C.B.I. (1980 Supp. SCC 92) to hold that  framing of charge is not an interlocutory order.  The decision in     V.C. Shukla’s case (supra) was rendered in the background of the  special statute applicable and it is clearly stated in para 47 to be  so.  In any event, that question is academic as the High Court did not  interfere with the order passed by the Additional Sessions Judge on the  ground that the revision was not maintainable in view of the  prescription in Section 397(2) of the Code.  Undisputedly, in a given  case Section 482 of the Code can be pressed into service.  It was held  by this Court in Pramatha Nath’s case (supra). Further, in  Subramanium’s case (supra) as noted above, it was observed that  issuance of process is a preliminary step in the stage of trial. In  V.C. Shukla’s case itself the distinction between cases covered by the  Code and the special Statute governing that case, as noted above, has  been clearly indicated. It was inter alia, observed as follows:         "To sum up, the essential attribute of an  interlocutory order is that it merely decides some  point or matter essential to the progress of the suit  or collateral to the issues sought but not a final  decision or judgment on the matter in issue. An  intermediate order is one which is made between the  commencement of an action and the entry of the  judgment. Untwalia, J in the case of Madhu Limaye v.  State of Maharashtra (1978(1) SCR 749) clearly meant  to convey that an order framing charge is not an  interlocutory order but is an intermediate order as  defined in the passage, extracted above, in Corpus  Juris Secundum, Vol.60. We find ourselves in complete

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agreement with the observations made in Corpus Juris  Secundum. It is obvious that an order framing of the  charge being an intermediate order falls squarely  within the ordinary and natural meaning of the term  ’interlocutory order’ as used in Section 11(1) of the  Act. Wharton’s Law Lexicon (14th Edn. P.529) defines  interlocutory order thus:

"an interlocutory order or judgment is one  made or given during the progress of an  action, but which does not finally dispose  of the rights of the parties."

       Thus, summing up the natural and logical  meaning of an interlocutory order, the conclusion is  inescapable that an order which does not terminate  the proceedings or finally decides the rights of the  parties is only an interlocutory order. In other  words, in ordinary sense of the term, an  interlocutory order is one which only decides a  particular aspect or a particular issue or a  particular matter in a proceeding, suit or trial but  which does not however conclude the trial at all.  This would be the result if the term interlocutory  order is interpreted in its natural and logical sense  without having resort to Criminal Procedure Code, or  any other statute. That is to say, if we construe  interlocutory order in ordinary parlance it would  indicate the attributes, mentioned above, and this is  what the term interlocutory order means when used in  Section 11(1) of the Act.  

       This case was following in the case of Mohd.  Amin Bros. v. Dominion of India (AIR 1950 SC 139)  where it was held that so far as this Court is  concerned the principles laid down in S.Kuppuswami  Rao v. King (AIR 1949 FC 1) settled the law. In this  connection, in the aforesaid case, Mukherjea, J.,  speaking for the Court observed as follows:

       "The expression ’final order’ has been used  in contradistinction to what is known as  ’interlocutory order’ and the essential test to  distinguish the one from the other has been  discussed and formulated in several cases  decided by the Judicial Committee. All the  relevant authorities bearing on the question  have been reviewed by this Court in their  recent pronouncement in S. Kuppuswami’s case  (supra) and the law on point, so far as this  Court is concerned, seems to be well settled.  In full agreement with the decisions of the  Judicial Committee in Ramchand Manjimal v.  Goverdhandas Vishandas (1920 (47) IA 124) and  Abdul Rahman v. D.K. Cassim and Sons (AIR 1933  PC 58) and the authorities of the English  Courts upon which these pronouncements were  based, it has been held by this Court that the  test for determining the finality of an order  is, whether the judgment or order finally  disposed of the rights of the parties.  

       Thus, the Federal Court in its decision seems  to have accepted two principles, namely:

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       (1)     that a final order has to be interpreted  in contradistinction to an interlocutory order; and  

       (2)     that the test for determining the  finality of an order is whether the judgment or order  finally disposed of the rights of the parties.

       Thus, summing up the entire  position the  inescapable conclusion that we reach is that giving  the expression "interlocutory order" its natural  meaning according to the tests laid down, as  discussed above, particularly in Kuppuswami’s case  (supra) and applying the non obstante clause, we are  satisfied that so far as the expression  ’interlocutory order’ appearing in Section 11(1) of  the Act is concerned, it has been used in the  natural sense and not in a special or a wider sense  as used by the Code in Section 397(2). The view  taken by us appears to be in complete consonance  with the avowed object of the Act to provide for a  most expeditious trial and quick dispatch of the  case tried by the Special Court, which appears to be  the paramount intention in passing the Act."     

       As the High Court has not considered the legality of the order  directing issuance of process keeping in view the law laid down by this  Court, we feel it would be proper to remit the matter to the High Court  to record positive findings on the relevant issues.  

       The appeal is disposed of accordingly.