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PETITIONER: PRAMATHA NATH TALUQDAR

       Vs.

RESPONDENT: SAROJ RANJAN SARKAR

DATE OF JUDGMENT: 21/12/1961

BENCH: DAS, S.K. BENCH: DAS, S.K. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1962 AIR  876            1962 SCR  Supl. (2) 297  CITATOR INFO :  RF         1971 SC2372  (11)  F          1977 SC2432  (4)  RF         1983 SC 595  (10)  R          1986 SC1440  (9,11)  R          1988 SC1883  (257)  F          1992 SC1894  (11)

ACT:      Criminal  Complaint-Scope  of  enquiry-Second complaint on  same facts  but  fresh evidence-When can  be   entertained-Exceptional   circumstances- Manifest error-Code  of Criminal  Procedure,  1898 (Act 5  of 1898)  ss. 200,  202, 203, 204-Criminal Matter-Special  Bench-Validity   of  Constitution- Calcutta High  Court  (Appellate)  Rules-Sanction- Abetment by  conspiracy-Code of Criminal Procedure 1891 (Act  5 of  1898), s. 196A-Indian Penal Code, 1860 (XLV of 1860), ss. 107, 109, 120A, 120B.

HEADNOTE:      On March  17, 1954,  Promode Ranjan a brother of N.  R. Sarkar  filed a  complaint under  s. 200 Code of  Criminal Procedure  against  Pramathanath and S.  M. Basu alleging offences punishable under ss. 467,  471 and  109 of  the Indian  Penal Code, before the  Chief Presidency Magistrate in respect of  a  document  appointing  Pramathanath  as  the Managing Director  of N.  R. Sarkar  & Co. and the minutes of  the Board  meeting resolving the same. It was  alleged therein  that the signatures of N. R. Sarkar on those documents were forgeries. After considering the evidence of the Handwriting Expert the Magistrate  dismissed the  complaint.  Promode Ranjan preferred  a revision  petition to the High Court.  The  High  Court  dismissed  the  revision Petition. By an application dated January 6, 1956, when the  revision petition was pending, attention of the  High Court  was drawn to the fact that the minutes dated  January 16, 1948, had been typed on a letter  bearing at  the top  in print "Telephone City 6091" where as the City Exchange had not come

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into existence  till December  1948.  The  Supreme Court granted  special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn.      On  April  3,  1959,  Saroj  Ranjan,  another brother of  N.R. Sarkar,  laid a  complaint on the same facts and allegations 298 against the  appellants, in  addition alleging the further fact about the City Exchange in support of the  allegation   that  the  minutes  were  forged dishonestly and  fraudulently and used as genuine. Neither in  this complaint  nor  before  the  High Court had  it been stated as to when it came to be known that  on the  purported date  of the minutes the  City  Exchange  was  not  in  existence.  The Presidency Magistrate  issued process  against the appellants. The  appellants went up in revision to the High  Court. The  matter was  first heard by a Division Bench  and was later referred to a larger Bench of three Judges which dismissed the revision petition. In these appeals on special leave it was contended  by   the  appellants  that  the  second complaint ought not to have been entertained, that the constitution  of the special Bench was illegal and  that   as  the   complaint  alleged  criminal conspiracy sanction  under s.  196A of the Code of Criminal Procedure was required. ^      Held, that  the enquiry  contemplated by  ss. 200 to  204 Code  of Criminal Procedure is for the purpose of  enabling the Magistrate to find out if sufficient grounds exist for issuing process.      Vadilal   Panchal    v.   Daltaraja    Dulaji Chandigaonkar, [1961]  1 S.C.R.  1, Gulab  Khan v. Gulab Mohammad  Khan A.I.R.  1927 Lah.  30 and Ram Gopal Ganpat  Ruia  v.  State  of  Bombay,  (1958) S.C.R. 688 referred to.      Per S.  K. Das,  J.-The law does not prohibit altogether the entertainment of a second complaint when a  previous complaint on the same allegations has been  dismissed under  s. 203  of the  Code of Criminal  Procedure.   But  a   second   complaint containing more  or less  the same allegations can be entertained  only in exceptional circumstances. It  is   not  possible   nor  desirable  that  the exceptional  circumstances  must  be  stated  with particularity or  precision.  Generally  speaking, the exceptional  circumstances may  be  classified under three  categories: (1) manifest error in the earlier proceeding,  (2) resulting  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. Where the previous order of dismissal was  passed  on  an  incomplete  record  or  on  a misunderstanding of the nature of the complaint, a second  complaint  may  be  entertained.  Where  a Magistrate misdirects  himself as  to the scope of an  enquiry   under  s   202,  Code   of  Criminal Procedure, and  the mistake,  made gives  a  wrong direction to  the whole  proceeding on  the  first complaint, the  order of  dismissal passed thereon would be  due. to  a manifest error resulting in a miscarriage of  justice. In  such a case, a second

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complaint is entertainable. 299      Per Kapur  and Hidayatullah,  JJ.-There is no legal bar  to the  entertainability  of  a  second complaint. It  is only  when  the  Magistrate  had misdirected himself,  with regard  to the scope of the  enquiry   under  s.  203,  Code  of  Criminal Procedure, or has passed an order misunderstanding the nature  of   the complaint  or  the  order  is manifestly unjust  or absurd or the order is based on an  incomplete record can it be said that there is such a manifest error or a manifest miscarriage of justice  that a  second complaint  on the  same allegations  may   be   entertained.   The   other exceptional  circumstances   in  which   a  second complaint  may   be  entertained  is  when  it  is supported by fresh and further evidence.      Case-law referred to.      In the case of fresh evidence it must be such as could  not have  been with due diligence on the part of  the  complaint  adduced  on  the  earlier occasion.      Queen Empress  v. Dole  Gobinda Das  I.L.R 28 Cal. 211, Dwarkanath Mandal v. Daniradha banerjee, I.L.R. 28 Cal. 692 (F.B.) disapproved.      Allah Ditta  v. Karam  Bakshi, 12 Lah, 9 Ram, Narain Chowdhary  v. Punachand Jain, AIR 1949 Pat. 255, Hansabai  v. Ananda, A.I.R. 1949 Bom. 384 and Doraiswami v.  Subramania, A  I. R. 1918 Mad. 484, approved.      In the  present case  permitting  the  second complaint to  proceed would  be a  gross abuse  of process.      Held, further,  concurring with S.K. Das, J., that the Special Bench was properly constituted.      Per S.  K. Das, J.-On the first complaint the Presidency  Magistrate   had  misdirected  himself regarding the  scope of  the enquiry under ss. 203 and 204  of the  Code of Criminal Procedure and it was a  manifest error.  The facts  about the  City Exchange urged and fresh evidence were decisive of a prima  facie case for issuing process and it was an     exceptional     circumstance     justifying entertaining  the  second  complaint  and  not  to permit the trial of the case in such circumstances would be a denial of justice.      Kumariah v.  C. Naicker, A.I.R. 1946 Mad, 167 and Ramanand  v. Sheri,  I.L.R.  1.  56  All  425, referred to.      Though Chapter  II of  the Rules  of the High Court (Appellate  Side) in  terms applies to Civil cases,  their   substance  could   be  applied  to criminal   cases   by   the   Chief   Justice   in constituting a larger bench.      The  substance  of  the  allegations  in  the complaint amounted  to an  offence of  abetment by conspiracy under 300 s. 107  Indian Penal  Code and  not the offence of Criminal Conspiracy  as defined  by  s.  120A  and therefore sanction  under s.  196A of  the Code of Criminal  Procedure   was   not   necessary.   The distinction between the two  offences lies in that the first  requires an  overt act  in pursuance of the  agreement   whereas  the   second  makes  the

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agreement  to   do   the   unlawful   act   itself punishable.      Basirul Hag  v. State  of West  Bengal [1953] S.C.R. 826 and Mulachy v. The Queen, (1868) L.R. 3 H.L. 306, referred to.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeals Nos. 75 and 77 of 1961.      Appeal by special leave from the judgment and order dated  December 22-23,  1960, and  from  the order dated  March 17,  1961 of  the Calcutta High Court in Cr. Revision Nos. 1019 and 681 of 1959.      C.K. Daphtary,  Solicitor General  of  India, and I. N. Shroff, for the appellant (in Cr. A. No. 75/61).      Purushottam Trikamdas,  Prasunchandra  Ghosh, S.C. Mitter  and I.  N. Shroff,  for the appellant (in Cr. A. No. 77 of 1961).      M. C.  Setalvad, Attorney  General of  India, Alak Gupta,  S.N. Andley,  Rameshwar Nath and P.L. Vohra for the respondents.      1961. December 21. The judgment was delivered by      S.K. Das,  J.-I regret  that I have come to a conclusion  different  from  that  of  my  learned brethren in  these appeals. I proceed now to state the necessary facts, the arguments advanced before us and  my conclusions  on the  various  questions urged.      By an  order dated  April 10, 1961 this Court granted  special   leave  asked  for  by  the  two appellants  herein,  Pramatha  Nath  Talukdar  and Saurindra Mohan Basu, to appeal to this Court from two orders made by the High Court of Calcutta, one dated December  22/23, 1960  and the  other  dated March 17, 1961. By the first order a Special 301 Bench of  the Calcutta  High Court  dismissed  two applications in  revision which the appellants had made to  the said  High Court  against an order of the Chief  Presidency Magistrate of Calcutta dated April 11, 1959 by which the said Magistrate issued processes against  the two appellants for offences alleged to  have been  committed by them under ss. 467 and  471 read  with s. 109 of the Indian penal Code on  a complaint  made by Saroj Ranjan Sarkar, respondent herein.  By the second order a Division Bench of the said High Court refused the prayer of the  appellants   for  a  certificate  under  Art. 134(1)(c) of  the Constitution  of India  that the case was  a fit one for appeal to this Court. This refusal was based primarily on the ground that the order sought  to be  appealed from was not a final order within the meaning of the Article aforesaid.      In pursuance  of the special leave granted by this Court  four appeals  were filed,  two against the order dated December 22/23, 1960 and the other two against  the order  dated March  17, 1961. The two appeals  numbered 76  and 78  of 1961 from the order dated  March 17,  1961 were withdrawn on the ground that  special  leave  having  been  granted against the  order  of  the  Special  Bench  dated

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December 22/23,  1960, the appellants did not wish to press  the appeals  from the  later order dated March, 17,  1961. Therefore,  the present judgment relates to  the two  appeals numbered 75 and 77 of 1961 which  are from the judgment and order of the Special Bench dated December 22/23, 1960.      The  principal   question  which  arises  for decision in  these two appeals is whether a second complaint can  be entertained  by a Magistrate who or whose  predecessor had,  on the same or similar allegation, dismissed a previous complaint, and if so in  what circumstances  should  such  a  second complaint be entertained. The question is one of 302 general importance  and has  given  rise  to  some divergence of opinion in the High Courts.      Let me  first state  the facts which have led to the  filing of  the  second  complaint  in  the present case.  Saroj Ranjan  Sarkar,  who  is  the youngest brother of the late Nalini Ranjan Sakar-a well-known public man, financier and industrialist of Bengal-filed  a petition  of complaint  in  the court  of   the   Chief   Presidency   Magistrate, Calcutta. On April 3, 1959, I do not pause here to state the  allegations made  in that  petition,  a shall have  occasion to  refer to  them in  detail later on.  The complaint  was filed  against  four persons-the  appellants   herein  and   two  other persons, Narendra  Nath Law and Amiya Chakravarty. A previous  complaint on  more or  less  the  same allegations was  made by  Promode  Ranjan  Sarkar, second brother  of the  late Nalini Ranjan Sarkar. That complaint  was made on March 17, 1954 and was dismissed under  s. 203  of the  Code of  Criminal Procedure by the then Chief Presidency Magistrate, Shri  N.   C.  Chakravarti,  on  August  6,  1954. Thereafter, an application in revision was made by Promode  Ranjan   Sarkar  to  the  High  Court  of Calcutta, which  gave rise  to Revision  Case  No. 1059 of  1954. This  application in  revision  was dismissed on  July 8, 1955 by Debabrata Mookerjee, J.  Promode  Ranjan  Sarkar  then  applied  for  a certificate   under    Art.   134(1)(c)   of   the Constitution, but  such a  certificate was refused by a Bench of the Calcutta High Court on September 1, 1955. Promode Ranjan Sarkar applied for special leave from  this Court  and obtained such leave on February  13,   1956.  An   appeal  was  filed  in pursuance of  that special  leave, but  ultimately Promode  Ranjan  Sarkar  withdrew  his  appeal  by filing a  petition on  February 3,  1959. In  that petition he  stated that  at the  intervention  of Common friends and well-wishers of the parties, he had settled  his  disputes  with  the  respondents therein and  did not  want  to  proceed  with  the appeal 303 The appeal  was accordingly withdrawn on March 12, 1959. Then,  within about  22 days  of that order, Saroj Ranjan  Sarkar filed the complaint which has given  rise   to  the   present  proceedings.  For convenience and  brevity, I shall refer to Promode Ranjan Sarkar’s  complaint as  the first complaint and Saroj Ranjan Sarkar’s as the second complaint.      It is necessary here to give a little more of

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the background history of the second complaint. As stated earlier,  the late Nalini Ranjan Sarkar was a  well-known   person  in   Bengal.  He  was  the Governing or  Managing Director  of N. R. Sarkar & Co. Ltd.,  which managed  several  public  limited companies,   such    as,   Hindustan   Development Corporation Ltd.,  Hindustan Heavy Chemicals Ltd., and Hindusthan  Pilkington Glass Works Ltd. He was also closely  connected with  the  Hindusthan  Co- operative Insurance Society Ltd., of which he held a large  number of  shares. On  January 4, 1948 he obtained leave of absence from the Directors of N. R. Sarkar & Co. Ltd. for a period of one year with a view  to joining the Ministry in West Bengal and he assumed  office as Finance Minister of the West Bengal Government  on January 23, 1948. Later, the leave granted to him for one year was extended. He owned 4649  shares of  N. R.  Sarkar  &  Co.  Ltd. Pramatha Nath Talukdar, who was a paid employee of the Hindusthan Co-operative Insurance Society Ltd. up to the end of July, 1953 was also a Director of N. R.  Sarkar & Co. Ltd. He held 299 shares of the said company. Promode Rajan Sarkar held 50 shares. Santi Ranjan  Sarkar; son of a deceased brother of Nalini Ranjan  Sarkar, held  one share.  Thus,  it would appear  that Nalini  Ranjan Sarkar  was  the owner of  the largest  number of  shares of  N. R. Sarkar & Co., Ltd., and for all practical purposes he controlled the affairs of that company. On July 31, 1951  Nalini Ranjan  Sarkar executed a deed of trust in respect of 3649 shares out of the 304 shares held  by him  in N. R. Sarkar & Co. Ltd. By the said  trust-deed he  appointed Promode  Ranjan Sarkar, Pramatha  Nath Talukdar  and Narendra Nath Law as  the trustees;  but the beneficiaries under the trust-deed  were his  four  brothers,  namely, Promode  Ranjan  Sarkar,  Pabitra  Ranjan  Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, as also Santi  Ranjan Sarkar,  the son  of a deceased brother. It  was alleged  that the balance of 1000 shares held  by Nalini  Ranjan Sarkar  was kept in custody with  Pramatha Nath Talukdar and according to the  case of  the complainant these shares were kept in  deposit with  Pramatha Nath  Talukdar for the benefit  of the complainant and this brothers. Nalini Ranjan  Sarkar died on January 25, 1953. It was alleged  that a  few days  after  the  funeral ceremony had  been performed, Saurindra Mohan Basu casually informed  Promode Ranjan  Sarkar that his brother Nalini  Ranjan  Sarkar  had  executed  two documents  to   wit,  an   unregistered  deed   of agreement dated January 19, 1948 by which Pramatha Nath Talukdar  was appointed  Managing Director of N.R. Sarkar  & Co.  Ltd. and a deed of transfer of 1000 shares  dated February  5, 1951  in favour of Pramatha Nath  Talukdar. Promode Ranjan Sarkar and his  brothers   did  not   give  credence  to  the information  conveyed,   and  wanted  to  see  the documents. It  was alleged  that this  request was not complied  with. On  July 31,  1953, i.e. about six months after the death of Nalini Ranjan Sarkar Pramatha Nath  Talukdar resigned from his salaried post under  the Hindusthan  Co-operative Insurance Society Ltd. and sought to assume control of N. R.

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Sarkar &  Co. Ltd.  as its Managing Director. This led to  some trouble between Promode Ranjan Sarkar and the appellants and also to some correspondence between Promode  Ranjan Sarkar  on one side and N. R. Sarkar & Co. Ltd. on the other, details whereof are not necessary for our purpose. 305 On September  22, 1953  a meeting  of the Board of Directors of  N.R. Sarkar  & Co. Ltd. was held. It was alleged  that the meeting was held irregularly without any  agenda and  a resolution was adopted, despite Promode  Ranjan Sarkar’s protest, by which the  appointment  of  Pramatha  Nath  Talukdar  as Managing Director  of N.  R. Sarkar & Co. Ltd. was renewed  for   seven  years.  In  September,  1953 Promode  Ranjan  Sarkar  formally  wrote  to  N.R. Sarkar &  Co. Ltd.  for inspection  of the alleged deeds of  agreement and  transfer. On  October  1, 1953 an  inspection was  taken, and on October 13, 1953 Promode  Ranjan Sarkar  was allowed  to  take photographs  of   the  relevant  portions  of  the documents. On  this occasion Promode Ranjan Sarkar also inspected  the minutes  of the proceedings of N. R.  Sarkar &  Co. Ltd.  and it was alleged that the proceedings  dated January 16, 1948 purporting to bear the signature of Nalini Ranjan Sarkar were forged. The  main allegations  in  the  first  and second complaints  related to  three documents and were to  the  effect  "that  in  order  to  assume complete control  over N. R. Sarkar & Co. Ltd. and the  concerns   under  its  managing  agency,  the accused persons entered into a criminal conspiracy with  one   another   and   others   unknown,   to dishonestly  and  fraudulently  forge  a  deed  of agreement, a  deed of  transfer and  make a  false document, to  wit, minute  book of  N. R. Sarkar & Co. Ltd.  and in pursuance thereof dishonestly and fraudulently forged and or caused to be forged and used as  genuine the  said documents".  It will be noticed that  three documents  were stated to have been forged, and they were-      (1)  An   unregistered  deed   of   agreement purporting to  have  been  executed  by  the  late Nalini Ranjan  Sarkar as  Governing Director of N. R.  Sarkar   &  Co.   Ltd.  on  January  19,  1948 appointing Pramatha  Nath Talukdar as the Managing Director  of   N.  R.  Sarkar  &  Co.  Ltd.  on  a remuneration of  Rs. 1500-100-2000 per month. This document bore 306 the signature of Saurindra Mohan Basu as a witness attesting the  signature of  Nalini Ranjan Sarkar, which signature was stated to have been forged.      (2) A transfer deed in respect of 1000 shares of N. R. Sarkar & Co. Ltd. which were said to have been  entrusted   to   Pramatha   Nath   Talukdar, transfering them  to the  latter for  and  alleged consideration of rupees one lac purporting to have been executed  by the late Nalini Ranjan Sarkar on February 5,  1951 with Saurindra Mohan Basu as the attesting witness  both for the transferor and the transferee.      (3) Minutes  of the  proceedings of the Board meeting of  N.R. Sarkar  & Co.  Ltd. dated January 16, 1948  purporting to  bear the signature of the

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late  Nalini   Ranjan  Sarkar   and  containing  a resolution  to   the  effect  that  the  Governing Director  approved   of  a   draft  agreement   of appointment between  the Company and Pramatha Nath Talukdar for  appointing the  latter  as  Managing Director of  the Company  and that  the  Board  of Directors approved of the said draft agreement.      Of the  aforesaid  three  documents  the  one relating to  the alleged  transfer of  1000 shares referred to  as (2)  above, is  the subject  of  a separate suit  stated to  be now  pending  in  the Calcutta  High   Court.  That   document  is  not, therefore, directly  the  subject  matter  of  the second complaint.  As to  the unregistered deed of agreement referred  to as  (1) above,  it  may  be stated that  the original  document could  not  be later found,  and on  behalf of the appellants and other accused  persons  it  was  stated  that  the document was  not in  their possession or control. As  stated  earlier,  Promode  Ranjan  Sarkar  had obtained  a   photostatic  copy  of  the  relevant portions of  the document. As to this document the main allegation of the complainant was that it was engrossed on  a rupee  stamp-paper which  had been issued,  on   renewal,  in   the  name   of   P.D. Himatsinghka  &  Co.,  a  firm  of  solicitors  in Calcutta 307 and evidence was led at the enquiry into the first complaint that the paper was stolen from that firm and furthermore that the signature on the document purporting to  be that of Nalini Ranjan Sarkar was not his  signature at  all.  With  regard  to  the minutes of  the proceedings dated January 16, 1948 the allegation  was that the minutes were typed on a sheet  of paper  bearing  the  letter-head  N.R. Sarkar &  Co. Ltd.  with  telephone  number  "City 6091" printed  thereon; but  the City Exchange did not come  into existence  until December, 1948 and the telephone  connection relating to number "City 6091" was  obtained for  the  first  time  by  the Hindusthan Co-operative  Insurance Society Ltd. on or about  March 18,  1949; and therefore the paper with the  letter-head N. R. Sarkar & Co. Ltd. with telephone number "City 6091" printed thereon could not have  been in existence on the alleged date of the proceeding  of the  Board of Directors, namely January 16,  1948. In the second complaint certain other circumstances  were also  alleged in support of the  allegation that  the unregistered  deed of agreement dated  January 19,  1948 and the minutes of the  proceedings dated  January, 16,  1948 were forged. It  is, however,  unnecessary to  refer to those circumstances in detail here.      The learned Chief Presidency Magistrate, Shri Bijayesh Mukherjee,  who  dealt  with  the  second complaint considered  all the  relevant  materials and came to the following conclusions:      (1) there  was no  delay in making the second complaint, if  one had regard to the circumstances which  led   to  the   first  complaint   and  the withdrawal of  the appeal  in the Supreme Court on March 12,  1959 arising  out of  the order made on the first complaint;      (2) the  dismissal of the first complaint and

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the application  in revision  arising therefrom by Debabrata Mookerjee,  J. did  not, as  a matter of law, 308 operate as  a bar  to  the  entertainment  of  the second complaint.      (3) the  second complaint  was not an attempt at blackmail; and      (4) the  relevant  materials  in  the  record showed  prima   facie  that  the  minutes  of  the proceedings dated January 16, 1948 were forged and so also  the unregistered  deed of agreement dated January, 19, 1948.      The learned  Chief Presidency Magistrate then said:           "Prima facie,  I am  satisfied about the      truth of the allegations the complaint makes.      That apart,  the complaint  is for an offence      triable by  a  Court  of  sessions.  And  the      materials I  see before  me are such as in my      opinion may  lead a reasonable body of men to      believe the  truth thereof.  Judged so, there      is  in   my  opinion  sufficient  ground  for      proceeding within  the meaning of section 204      of the procedure Code. On the  question as  to which  of the four accused persons against  whom process  should  issue,  the learned Chief  Presidency Magistrate  came to  the conclusion that  there  was  a  prima  facie  case against two  of the  accused persons only, namely, Pramatha Nath  Talukdar and  Saurindra Mohan Basu. Saurindra Mohan Basu, it may be stated here, was a solicitor of  N.R.  Sarkar  &  Co.  Ltd.  and  had attested the  signature of Nalini Ranjan Sarkar on the unregistered  deed of  agreement. The  learned Chief Presidency Magistrate held that there was no sufficient  ground  for  proceedings  against  the other two  accused persons,  namely, Narendra Nath Law and Amiya Chakravarty.      Against the  aforesaid  order  of  the  Chief Presidency Magistrate two applications in revision were  filed   by  the   appellants  herein.  These applications 309 in revision  were first  heard by a division Bench of two  Judges of  the Calcutta  High Court, P. B. Mukherjee and  H. K.  Bose, JJ.  In  view  of  the importance of  the questions  raised  in  the  two applications  in   revision   and   some   earlier decisions of  the Calcutta  High Court  bearing on those questions  to which I shall presently refer, P.B. Mukherjee, J. came to the conclusion that the applications should  be referred to a larger Bench to be  constituted by  the Chief Justice under the rules of the Court. H.K. Bose. J. (as he then was) was  inclined   to  take   the   view   that   the applications  in   revision  must   fail,  but  in deference  to   the  views   expressed   by   P.B. Mukherjee, J.  agreed that the applications should be referred  to the Chief Justice for constituting a larger  Bench. The  matter was  then referred to the  learned  Chief  Justice,  who  constituted  a Special Bench  of three  Judges to  hear  the  two applications in revision. This Special Bench heard the two  applications in  revision  and  dismissed

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them by its order dated December 22/23, 1960.      Three  questions  were  agitated  before  the Special Bench.  The first  was whether the Special Bench was  lawfully in  seizin of the case and was competent  to   deal  with   the  applications  in revision. The second was whether the learned Chief Presidency Magistrate  had  jurisdiction  to  take cognizance of the offences alleged, in the absence of a  sanction  under  s.  196A  of  the  Code  of Criminal Procedure.  The third  and the  principal question was  whether it  was open  to the learned Chief Presidency  Magistrate to entertain a second complaint  on   the  same   allegations  when  his predecessor had dismissed the first complaint; and if it  was open  to him  to entertain  the  second complaint should  he have  entertained it  in  the circumstances of  the present  case ?  The Special Bench unanimously  decided these  three  questions against the  appellants and  further came  to  the conclusion that there was no undue delay in making the second 310 complaint; neither  was it  frivolous nor  made in bad faith.  It further  expressed the view that it saw no  reasons to  differ from the finding of the learned Chief Presidency Magistrate that there was a prima facie case against the two appellants.      Now, as  to the first question. Chapter II of Rules of  the High  Court at  Calcutta  (Appellate Side) deals  with the  constitution and  powers of the Benches  of the  Court. Rule  1  of  the  said chapter says  in effect  that a Division Bench for the hearing  of appeals  from decrees or orders of the Subordinate  Civil Courts shall consist of two or more Judges as the Chief Justice may think fit; there is  a proviso  [proviso (ii)]  to  the  rule which says that on the requisition of any Division Bench,  or  whenever  he  thinks  fit,  the  Chief Justice may  appoint a  special Division  Bench to consist of three or more Judges for the hearing of any particular  appeal, or any particular question of law  arising in  an appeal, or of the any other matter. It  is clear that the rule and the proviso deal with  the hearing  of appeals from decrees or orders of  the Subordinate  Civil Courts; in other words, they deal with civil matters. Rule 9 of the same chapter deals with criminal matter and sub-r. (1) of  the said  rule says  that a Division Bench for the  hearing of cases on appeal, reference, or revision in  respect of  the sentence  or order of any Criminal  Court shall  consist of  two or more Judges. There  is no  proviso to this rule similar to the  proviso to  r. 1, referred to earlier, and the argument  is that  in the  absence of  such  a proviso it  was not  open to  the  Division  Bench consisting of Mukherjee and Bose, JJ. to refer the case  back   to  the   Chief   Justice   for   the constitution of a larger Bench (though it was open to the  Chief Justice  to constitute  originally a Division Bench  of three Judges to hear the case), and if the Judges were equally divided in opinion, s. 429  of the  Code of  Criminal procedure  would apply and  the case  had to be laid before another Judge and judgment given according to the 311

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opinion of  the third Judge. I am unable to accept this argument  as correct.  It is  clear from  the rules in  Chapter  II  that  the  constitution  of Benches is  a matter  for the Chief Justice and r. 13 in  Chapter II says that a Full Bench appointed for any  of the purposes mentioned in Chapter VII, rr. 1  to 5, shall consist of five Judges or three Judges as the Chief Justice may appoint. Now, r. 1 in Ch.  VII says  inter  alia  that  whenever  one Division  Bench   shall  differ   from  any  other Division Bench upon a point of law or usage having the force  of law,  the case shall be referred for decision by a Full Bench and r. 5 says that if any such question  arises in  any case coming before a Division  Bench   as  Court  of  Criminal  Appeal, Reference or  Revision, the  Court  referring  the case shall state the point or points on which they differ from  the decision  of  a  former  Division Bench, and  shall refer  the case to a Full Bench, for such  orders as to such Bench seem fit. In his judgment  P.B.   Mukherjee,  J.  referred  to  two earlier decisions  of  the  Calcutta  High  Court, Nilratan Sen v. Jogesh Chandra Bhattacharia(1) and Kamal Chandra  Pal v.  Gourchand Adhikary  (2) and observed that  the question  as to  whether  those decisions were  good law  arose in the case and he gave that  as a  reason for  referring the case to the Chief Justice for the constitution of a larger Bench. Even if rr. 1 and 5 in Chapter VII may not, strictly  speaking,  apply  to  the  present  case because the  Division Bench consisting of Mukerjee and Bose JJ. did not formulate the point or points on which  they differed  from the earlier Division Bench decisions  referred to  by Mukherjee,  J., I think that  the principle  of  those  rules  would apply and  it was  open to the Chief Justice, on a reference by  the Division  Bench, to constitute a larger Bench  to consider  the case.  I am also in agreement with  the view  expressed by the Special Bench that  the absence  of a  proviso to  r. 9 in Chapter II correspon- 312 ding to the proviso to r. I does not take away the inherent power  of the  Chief Justice to refer any matter to Bench of three Judges. Sub-rule(1) of r. 9 itself  provides that  a Division  Bench for the hearing of cases on appeal, reference, or revision in  respect  of  the  sentence  or  order  of  any Criminal  Court  shall  consist  of  two  or  more Judges.  Therefore,  it  was  open  to  the  Chief Justice to  constituted Bench  of three Judges for the hearing  of the case and in my view it made no difference whether  he constituted  such  a  Bench originally or  on a reference back by the Division Bench. I further think that the Chief Justice must have the  inherent power  to constitute  a  larger Bench  in   special   circumstances.   Take,   for instance, a  case where  one Judge of the Division Bench feels,  for a  sufficient and  good  reason, that he  should not  hear the  case. It is obvious that in  such a  case the  matter must be referred back to  the Chief Justice for the constitution of another Bench.  The Chief  Justice, I  think, must possess such  an inherent  power in  the matter of constitution  of   Benches  and  in  the  exercise

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thereof he can surely constitute a larger Bench in a case  of importance  where  the  Division  Bench hearing  it  considers  that  a  question  of  the correctness or Otherwise of earlier Division Bench decisions  of   the  same   Court  will  fall  for consideration in the case. Section 229 of the Code of Criminal  Procedure does  not apply  to such  a case because  it is  not a  case where  the Judges composing  the   Court  are   equally  divided  in opinion. Rather  it is  a case  where  the  Judges composing the  Division Bench  consider  that  the case is  one of  such importance that it should be heard by a larger Bench.      My conclusion,  therefore, is  that there was nothing illegal  in the  Division Bench consisting of Mukherjee and Bose. JJ. referring the case back to the  Chief  Justice;  nor  was  there  anything illegal  in   the  Chief  Justice  constituting  a special Bench of 313 three Judges to hear the applications in revision. The special Bench constituted by the Chief Justice was  lawfully  in  seizin  of  the  case  and  was competent to deal with it. The objection as to the jurisdiction of the special Bench to hear the case was, in my opinion, rightly overruled by it.      Now, as  to section. Section 196A of the Code of Criminal  Procedure may  be  read  first.  That section is in these terms:           "196A. No Court shall take cognizance of      the offence of criminal conspiracy punishable      under section 120B of the Indian Penal Code.      (1)  in  a  case  where  the  object  of  the           conspiracy  is   to  commit   either  an           illegal act  other than an offence, or a           legal  act   by  illegal  means,  or  an           offence  to   which  the  provisions  of           section 196 apply, unless authority from           the "State Govern upon complaint made by           order or under authority from the "State           Government" or some officer empowered by           the "State  Government" in  this behalf,           or      (2)  in  a  case  where  the  object  of  the           conspiracy  is   to  commit   any   non-           cognizable  offence,   or  a  cognizable           offence  not   punishable  with   death,           imprisonment  for   life   or   rigorous           imprisonment for  a term of two years or           upwards, unless  the "State Government",           or  a  Chief  Presidency  Magistrate  or           District Magistrate  empowered  in  this           behalf by  the "State  Government", has,           by order  in writing,  consented to  the           initiation of the proceedings:           Provided   that   where   the   criminal      conspiracy is  one to which the provisions of      subsection (4)  of section  195 apply no such      consent shall be necessary." 314 The argument before us on behalf of the appellants has proceeded on the footing that in para 5 of the second complaint  Saroj Ranjan  Sarkar had alleged that  the  accused  persons  had  entered  into  a criminal conspiracy  with one  another  and  other

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persons unknown,  to dishonestly  and fraudulently forge certain  documents and  in pursuance thereof either  forged   or  caused  to  be  forged  those documents  and   used  them   as   genuine.   This allegation, it  is argued  attracted cl. (2) of s. 196A inasmuch  as the object of the conspiracy was to commit  non-cognizable offences  under ss.  467 and 471  of the  Indian Penal  Code; therefore, it was necessary  to obtain, by order in writing, the consent of  the State  Government or  of the Chief Presidency Magistrate  to the  initiation  of  the proceedings  and  such  consent  not  having  been obtained, the  issue of  processes  by  the  Chief Presidency Magistrate  violated the  provisions of s. 196A  of the  Code of  Criminal procedure.  The special  Bench   repelled  this  argument  on  the following grounds.  It pointed out the distinction between the  offence  of  criminal  conspiracy  as defined in  s. 120A  and punishable by s. 120B and the offence  of abetment  by conspiracy as defined in the  clause, secondly,  in s. 107 of the Indian Penal Code.  It then  pointed out  that the  Chief Presidency Magistrate  did not  take cognizance of the  offence  of  criminal  conspiracy  to  commit forgery which  would be  punishable under  s. 120B read with  s. 467 of the Indian Penal Code, but he took cognizance  of the  offence  of  abetment  of forgery punishable  under s.  467 read with s. 109 of the  Indian Penal  Code and for this offence no sanction under  s. 196A  of the  Code of  Criminal Procedure was necessary. The special Bench further expressed the view that the primary offences which the second  complaint disclosed  where the offence of forgery,  of using forged documents as genuine, and of  abetment  of  the  said  offences  and  as cognizance  of  these  offences  did  not  require sanction or 315 prior consent  of the  authorities mentioned in s. 196A, the order of the Chief Presidency Magistrate could not  be said to have violated the provisions of that section.      The correctness of these views of the special Bench has  been very  seriously contested.  I  may make  it   clear  at  the  very  outset  that  the mandatory provisions  of s.  196A of  the Code  of Criminal Procedure  cannot be  evaded by resorting to a mere device or camouflage. The test  whether sanction  is or is not necessary does not depend on mere astuteness of drafting the petition of  complaint. For example, in the second petition of  complaint under  consideration before us the  heading indicated  that  the  offences  in respect of  which the  petition of  complaint  was filed were  offences under ss. 467, 471 and 109 of the Indian  Penal Code;  but in  para.  5  of  the petition  the  allegation  was  that  the  accused persons had  entered into  a  criminal  conspiracy with one  another and  others  unknown,  to  forge certain documents.  It  would  not  be  proper  to decide the  question of  sanction merely by taking into consideration  the offences  mentioned in the heading or  the use  of the  expression  "criminal conspiracy" in  para. 5. The proper test should be whether the  allegations made  in the  petition of

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complaint disclosed  primarily and  essentially an offence or offences for which a consent in writing would  be  necessary  to  the  initiation  of  the proceedings within  the meaning  of s.  196A(2) of the Code  of Criminal  Procedure. It  is from that point of  view that the petition of complaint must be examined.  There is another principle laid down by this  Court which  should be  kept in mind. The allegations made  in the  complaint may  have more than one  aspect; and  may disclose  more than one offence. What  would be  the position when some of the offences disclosed do not require any sanction while others  require sanction ? This question was considered by this Court in 316 Basir-ul-huq v.  State of West Bengal(1). That was case  in   which   the   accused   person   lodged information at  a police station that X had beaten and throttled  his mother  to death  and when  the funeral  pyre   was  in  flames,  he  entered  the cremation ground  with police;  the dead  body was examined and  the complaint was found to be false. On the  complaint of  X  the  accused  person  was charged with  offences under  s. 297, Indian Penal Code (trespass to wound religious feelings) and s. 500,  Indian   Penal  Code  (defamation).  It  was contended that as the complaint disclosed offences under s. 182 and 211, Indian Penal Code, the Court could not  take cognizance of the case except on a complaint by  the proper authority under s. 195 of the Code  of Criminal  Procedure. It was held that the facts  which constituted  the offence under s. 297 where distinct from those which constituted an offences under  s. 182, as the act of trespass was alleged to have been committed after the making of the false  report, so  s. 195  was no  bar to  the trial of  the charge  under s. 297. It was further held that as regards the charge under s. 500 where the allegations  made in  a false  report disclose two  distinct   offences,  one  against  a  public servant  and   the   other   against   a   private individual,  the   latter  is   not  debarred   by provisions of  s. 195  of  the  Code  of  Criminal Procedure from  seeking redress  for  the  offence committed against  him. Referring to s. 195 of the Code  of   Criminal  Procedure   Mahajan,  J.  who delivered the judgment of the Court said:           "The statute  thus requires that without      a complaint  in writing of the public servant      concerned no prosecution for an offence under      section 182  can be  taken cognizance  of. It      does not  further  provide  that  if  in  the      course of  the  commission  of  that  offence      other distinct  offences are  committed,  the      magistrate is debarred from taking cognizance      in respect  of those  offences as  well.  The      allegation made 317      in a complaint may have a double aspect, that      is on  the one  hand these  may constitute an      offence against  the authority  of the public      servant or  public justice,  and on the other      hand, they may also constitute the offence of      defamation or  some other  distinct  offence.      The  section   does  not   per  se   bar  the

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    cognizance by the magistrate of that offence,      even if  no action  is taken  by  the  public      servant to  whom the  false report  has  been      made. x x x x           As regards the charge under section 500,      Indian Penal Code, it seems fairly clear both      on principle  and authority  that  where  the      allegations made  in a  false report disclose      two distinct offences, one against the public      servant  and  the  other  against  a  private      individual, that other is not debarred by the      provisions  of   section  195   from  seeking      redress for  the  offence  committed  against      him."      Keeping the  aforesaid two principles in mind let me  examine the  second complaint in this case in order  to find  out what essential offences the allegations made therein disclosed. Paragraph 5 of the petition  of complaint  on which much reliance has been placed on behalf of the appellant alleges (1)  that  the  accused  persons  entered  into  a criminal conspiracy  with one  another and  others unknown, to  forge certain  documents; (2) that in pursuance of  the conspiracy  those documents were forged; or  caused to  be forged; and (3) that the documents so  forged were  used  as  genuine.  The paragraph then  recited three documents which were said to  have been  forged. It  is thus clear that apart from  the conspiracy,  the second  complaint alleged that offences under ss. 467 and 471 of the Indian Penal  Code had  also been  committed.  The special  Bench   rightly  pointed   out  that  the offences under ss. 467 and 471 of the Indian Penal Code were  distinct from  the offence  of criminal conspiracy and  did not  require any prior consent for the initiation of 318 Proceedings therefor  under s. 196A(2) of the Code of Criminal Procedure. The question, of therefore, boils down to this: in view of the allegation that there was  a criminal  conspiracy, was  the  chief Presidency   Magistrate   debarred   from   taking cognizance of  the case  even though certain other distinct  offences  were  alleged  which  did  not require sanction  ? I  am in  agreement  with  the special Bench that the answer to the question must be in  the negative. Furthermore, it appears to me that though  the expression  "criminal conspiracy" occurs in  para. 5  of the  complaint,  the  facts alleged in  the petition  of complaint essentially disclose an  offence of  abetment  by  conspiracy. This brings  us to  the  distinction  between  the offence of  criminal conspiracy  as defined  in s. 120A and  the offence of abetment by conspiracy as defined in  s.  107  of  the  Indian  Penal  Code. Section 120A which defines the offence of criminal conspiracy and  s. 120B which punishes the offence are in  Ch. VA  of the  Indian  Penal  Code.  This Chapter introduced  into the criminal law of India a new  offence, namely,  the offence  of  criminal conspiracy. It  was introduced by the criminal Law Amendment Act,  1913 (VIII  of 1913). Before that, the  sections  of  the  Indian  Penal  Code  which directly dealt with the subject of conspiracy were these contained  in Ch.  V and  s. 121 (Ch. VI) of

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the Code.  The present  case is not concerned with the kind of conspiracy referred to in s. 121A. The point before  us is  the distinction  between  the offence of  abetment as  defined in s. 107 (Ch. V) and the  offence of criminal conspiracy as defined in s.  120A (Ch. VA). Under s. 107, second clause, a person  abets the  doing of a thing, who engages with one  or more  other person  or persons in any conspiracy for  the doing of that thing, if an act or illegal  omission takes  place in  pursuance of that conspiracy, and an order to the doing of that thing.  Therefore,  in  order  to  constitute  the offence of abetment by conspiracy, there 319 must first  be a combining together of two or more persons in  the conspiracy;  secondly, an  act  or illegal omission  must take  place in pursuance of that conspiracy, and in order to the doing of that thing. It is not necessary that the abettor should concert the  offence with  the person  who commits it.  It   is  sufficient  if  he  engages  in  the conspiracy in  pursuance of  which the  offence is committed. It  is  worthy  of  note  that  a  mere conspiracy or  a combination  of persons  for  the doing of  a thing  does not amount to an abetment. Something more  is necessary,  namely, an  act  or illegal omission  must take  place in pursuance of the conspiracy  and in  order to  the doing of the thing for  which the  conspiracy was  made. Before the introduction  of Ch.  VA conspiracy, except in cases provided  by ss. 121A, 311, 400, 401 and 402 of the  Indian Penal  Code, was  a mere species of abetment where  an act or an illegal omission took place  in   pursuance  of   that  conspiracy,  and amounted  to   a  distinct  offence.  Chapter  VA, however, introduced  a new  offence defined  by s. 120A.  That  offence  is  called  the  offence  of criminal  conspiracy   and  consists   in  a  mere agreement by two or more persons to do or cause to be done  an illegal  act or  an act  which is  not illegal by  illegal means;  there is  a proviso to the section which says that no agreement except an agreement to  commit an  offence shall amount to a criminal conspiracy  unless some  act besides  the agreement is  done by  one or more parties to such agreement  in  pursuance  thereof.  The  position, therefore comes  to this.  The gist of the offence of criminal  conspiracy is  in the agreement to do an illegal  act or  an act which is not illegal by illegal means.  When the agreement is to commit an offence, the  agreement itself becomes the offence of  criminal   conspiracy.  Where,   however,  the agreement is  to do an illegal act which is not an offence or  an act which is not illegal by illegal means,  some   act  besides   the   agreement   is necessary. 320 Therefore, the  distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so  far as  the agreement to commit an offence is  concerned, lies  in this. For abetment by conspiracy mere agreement is not enough. An act or illegal  omission must  take place in pursuance of the conspiracy and in order to the doing of the thing  conspired   for.  But  in  the  offence  of

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criminal conspiracy  the very agreement or plot is an act  in itself  and is the gist of the offence. Willes, J. observed in Mulcahy v. The Queen (1):           "When to  agree to carry it into effect,      the very  plot is  an act  in itself, and the      act of  each of  the parties, promise against      promise, actus contra actum, capable of being      enforced, if  lawful,  punishable  if  for  a      criminal object  or for  the use  of criminal      means."      Put very briefly, the distinction between the offence of  abetment under the second clause of s. 107 and  that of criminal conspiracy under s. 120A is this.  In the former offence a mere combination of  persons  or  agreement  between  them  is  not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of  the thing  conspired for;  in the latter offence the  mere  agreement  is  enough,  if  the agreement is to commit an offence.      So far as abetment by conspiracy is concerned the abettor  will be  liable to  punishment  under varying circumstances  detailed in ss. 108 to 117. It is  unnecessary to  detail those  circumstances for the  present case. For the offence of criminal conspiracy it is punishable under s. 120B.      Having regard  to the distinction pointed out above, I  am of  the opinion  that para.  5 of the second complaint,  though it  used the  expression "criminal conspiracy"  really disclosed an offence of abetment by conspiracy. It made no allegation 321 of any  agreement between the several persons at a particular place or time. It said that the accused persons  complained   against   entered   into   a conspiracy to  forge certain documents were forged or caused to be forged. In other words, an illegal act was  done in  pursuance of  the conspiracy and furthermore the  documents so  forged were used as genuine. Having  regard to  these  allegations  in para. 5  of the  second complaint,  I am unable to hold that the learned ’Chief Presidency Magistrate was wrong  in taking  cognizance of the offence of abetment  by  conspiracy,  for  which  offence  no consent or  sanction under  s. 196A of the Code of Criminal Procedure was necessary. Therefore, there was violation of the provisions of that section.      In this  view of the matter it is unnecessary to consider  the correctness  or otherwise  of the further view  expressed in  some of  the decisions (see,  for  example,  State  of  Bihar  v.  Srilal Kejriwal  (1)  to  which  the  special  Bench  has referred) that  there the matter has gone beyond a mere  conspiracy   and  substantive  offences  are alleged  to   have  been   actually  committed  in pursuance thereof,  ss. 120A  and 120B  are wholly irrelevant. That  view has  not been  accepted  as correct by  some of  the other High Courts. In the State of Andhra Pradesh v. Kandimalla Subbaiah (2) this Court  held that  offences created by ss. 109 and  120B,   Indian  Penal   Code  were   distinct offences, though  for  a  reason  stated  somewhat differently from  what I  have stated.  It further held  that   where  a   number  of  offences  were committed by  several persons  in pursuance  of  a

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conspiracy, it was not illegal to charge them with those offences  as well  as with  the  offence  of conspiracy to commit those offences, though it was not desirable  to charge  the accused persons with conspiracy with  the ulterior object of letting in evidence which would otherwise be inadmissible and furthermore, it was undesirable to complicate a 322 trial by  introducing a  large number  of  charges spread  over  a  long  period.  The  question  was treated  as   one  of  propriety  rather  than  of legality.  The   question  of  sanction  was  also considered in  that case, but in view of the order of  remand   passed,  no   opinion  was  expressed thereon.      The special  Bench expressed the view that it was not  necessary to  go to  the extent of saying that in  a case  of this  nature ss. 120A and 120B became  wholly   irrelevant.  The   special  Bench proceeded on  the  footing  that  irrespective  of whether ss. 120A and 120B became wholly irrelevant or not  the second complaint undoubtedly disclosed an offence  of abetment  by conspiracy  and it was open to  the Chief  Presidency Magistrate  to take cognizance of that offence. I think that there are no good reasons for holding that the view taken by the special  Bench is  not correct. In my opinion, the special  Bench rightly overruled the objection as to  the alleged  violation of the provisions of s. 196A of the Code of Criminal Procedure.      Now,  I  come  to  the  third  and  principal question agitated  in these  appeals. On behalf of one of  the appellants,  Saurindra Mohan Basu, Mr. Purushottam Trikumdas  has argued  before us  that when the  first complaint  containing more or less the same allegations was dismissed under s. 203 of the  Code  of  Criminal  Procedure  by  the  Chief Presidency Magistrate,  it was  not at all open to his successor  to entertain  the second complaint. He has put the matter as one of law and has argued that the  only way  of getting  rid of an order of dismissal under  s. 203  of the  Code of  Criminal Procedure known  to the Code of Criminal Procedure is to  have it  act aside  in accordance  with the procedure laid  down in  ss. 436  and 439  of  the Code. He  has further  argued that, as a matter of law, a  second complaint  is not  entertainable as long as the order of dismissal under s. 203 of the Code 323 of Criminal  Procedure  is  not  set  aside  by  a competent authority.  His argument is that the two decisions  in   Nilratan  Sen  v.  Jogesh  Chandra Bhattacharjee(1)  and   Kamal   Chandra   Pal   v. Gourchand Adhikary (2) should be held as good law. Section 403  of the  Code of Criminal Procedure is relevant to  this argument.  It embodies the well- established rule  of common law that a man may not be put  twice in  peril for  the same  offence and that no  man should  be vexed  with several trials for offences  arising out  of identical  acts.  An Explanation appended  to the  section  says  inter alia  that  the  dismissal  of  complaint  or  the discharge of  accused person  is not  an acquittal for  the   purposes  of   the  section.   If   the

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Legislature had  intended that  the  dismissal  of complaint or  the discharge  of an  accused person would be  a bar  to fresh  proceeding on  the same allegations  unless  the  order  of  dismissal  or discharge were  set aside  by a  higher court,  it would  have   said  so  either  explicitly  or  by omitting the  Explanation  altogether.  Therefore, the effect of the Explanation is that under s. 403 a fresh trial is barred only in cases of acquittal or   conviction    by   a   court   of   competent jurisdiction, coming  within the purview of sub-s. (1) thereof.  This  aspect  of  the  question  was considered in  Queen Empress  v.  Dolegobind  Dass (3), which  was a  case dealing  with  a  previous order of  discharge of the accused person. In that case, Maclean,  C. J.  referred to the decision in Nilratan Sen’s case and said:           "There is  no express  provision in  the      Code to  the effect  that the  dismissal of a      complaint shall be a bar to a fresh complaint      being entertained  so long  as the  order  of      dismissal  remains   unreversed’   (see   per      Benerjee, J.  in  Nilratan  Sens’  v.  Jogesh      Chandra Bhattacharjee  (supra).  I  agree  in      that. If, then there be no express provision 324      in the  Code, what  is there to warrant us in      implying or  in effect  introducing into  the      Code a  provision of  such serious import x x      x? In  the absence  of any other provision in      the Code to justify such an implication x x x      x I  can appreciate  no sound  ground for the      Court so acting; were it to do so it would go      perilously near  to legislating,  instead  of      confining itself  to construing  the Acts  of      the Legislature."      The question  was then  considered by  a Full Bench of  the Calcutta  High Court  in Dwarka Nath Mondul v. Beni Madhab Banerjee (1) 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  the  accused  person.  Nilratan  Sen’s case(2)  and  Kamal  Chandra  Pal’s  case(3)  were referred to  in the arguments as summarised in the report, but  the view  expressed therein  was  not accepted. Dealing  with the  question Princep,  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  recognised  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      witness and  to hear  them in the presence of      the accused."

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325      The same  view was  expressed by  the  Madras High Court in In re. Koyassan Kutty (1) 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  v.  Chinna  Naicker  (2), 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 v.  Ananda  Ganuji  (3)  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 v.  Panachand  Jain (4), Ramanand  v. Sheri  (5), and  Allah Ditta  v. Karam Baksh  (6). In  all these  decisions it  was recognised 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.   The question   of   the   existence   of   exceptional circumstances for  the entertainment  of a  second complaint is  a question  to which  I  shall  come later. At the present moment, I am considering the argument of  Mr. Purshottam Tricumdas that the law prohibits altogether the entertainment of a second complaint when  a previous  complaint on  the same allegations had been dismissed under s. 203 of the Code of  Criminal Procedure.  On this question the High Courts  appear to me to be almost unanimously against   the   contention   of   Mr.   Purshottam Tricumdas,  and  for  the  reasons  given  in  the decisions to which I have earlier referred, I 326 am unable  to accept  his contention. 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 s. 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 proceeding" with  the  second  complaint,  when  a previous complaint  on the  same  allegations  was dismissed under  s. 203  of the  Code of  Criminal Procedure.      The question  now is,  what should  be  those exceptional circumstances  ? In  Queen Empress  v. Dolagobind Dass (1), Maclean, C. J. said:           "I only desire to add that no Presidency      Magistrate ought,  in my opinion, to rehear a

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    case previously dealt with by a Magistrate of      coordinate   jurisdiction   upon   the   same      evidence only, unless he is plainly satisfied      that there  has been  some manifest  error or      manifest miscarriage of justice."      Thus,  according   to  this   decision,   the exceptional circumstance  must be  such  as  would lead the  Magistrate to  think that  the  previous order of  dismissal was due to a manifest error or resulted in a  manifest miscarriage of justice. In re.  Koyassan   Kutty  (2)   Sadasiva  Aiyar,   J. formulated the  test of  exceptional circumstances in the following words:           "Taking it  then that  the discharge was      proper and  legal, there  is no doubt nothing      in law against the entertainment of a second 327      complaint on the same facts as a discharge is      not equivalent  to an  acquittal; but I think      that unless  very strong  grounds are shown a      person  who   has  been   charged  once   and      discharged ought  not to be harassed again on      the same  charge. It  is not alleged that new      facts have  been discovered  which the police      did not  know when  they  brought  the  first      charge."      In this  decision the test formulated was the discovery of  new facts  which were not known when the  first   charge  of  complaint  was  made.  In Kumariah v.  Chinna Naicker(1)  the same  test was again applied when it was observed:           "There is nothing to indicate that there      was no  proper investigation  on the previous      complaint or that there was any necessity for      investigating the  second complaint. x x x No      additional witness  had  been  cited  in  the      second complaint,  nor, as pointed out by the      Additional Magistrate,  was it  alleged  that      any  other   kind  of   evidence   had   been      discovered or was likely to be forthcoming."      It  is   worthy  of   note,   however,   that Kuppuswami  Aiyar,   J.  did   not  say  that  the discovery of a new fact or new evidence must be of such a  character that  it was  not known  to  the complainant when  the prior  complaint was brought and dismissed. In Hansabai Sayaji v. Ananda Ganuji (2) it  was pointed out that the circumstance that the second  complaint was  filed by a person other than the  one who made the first complaint made no difference and  the test  laid down  in some early Rangoon High  Court decisions [Ma The Kin v. Nga E Tha (3)  and U  Shwe v.  Ma Sein  Bwin (4)  ], was accepted as the correct test. In Ma The Kin’s case (supra) the test was thus expressed: 328           "It  is   the  duty   of  a  Magistrate,      therefore, who receives a complaint in a case      where there  has been  a  previous  order  of      dismissal or discharge, not to issue process,      unless he is plainly satisfied that there has      been  some   manifest   error   or   manifest      miscarriage of  justice, or  unless new facts      are adduced  which the  complainant  had  not      knowledge of  or could  not  with  reasonable      diligence  have   brought  forward   in   the

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    previous proceedings."      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  (1)  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.  Dolegobind Dass  (2), 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. 203 329 of the  Code of Criminal Procedure. I do not think that in  a  matter  of  this  kind  it  is  either possible or  even desirable  that the  exceptional circumstances  must   be  stated   with  any  more particularity or  precision. The  learned Advocate for the  respondent argued  before us  that a  new category  should   be  added   and  he  called  it "frustration of  justice". I  am of  the view that apart from  any question  of felicity  of this new expression, this  new category  does not  give any more assistance towards explaining the exceptional circumstances which  must exist  before  a  second complaint  on   the  same   allegations   can   be entertained. I  am content in this case to proceed on  the  footing  that,  the  Magistrate  must  be satisfied that  there was  a manifest  error or  a miscarriage of  justice before  he can entertain a second complaint on the same facts.      In this  case, two  exceptional circumstances were adverted  to  before  us.  One  is  that  the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of ss. 203 and 204 of the  Code of Criminal Procedure and this, it is contended, resulted  in a  manifest miscarriage of justice when  he  dismissed  the  first  complaint under s.  203 of the Code of Criminal Procedure. I am of  the view  that there  is substance  in this contention. Section  203 of  the Code  of Criminal Procedure states  that the  Magistrate may dismiss the complaint, if, after considering the statement on oath,  if  any,  of  the  complainant  and  the witnesses and  the result  of the investigation or enquiry, if  any, under  s. 202,  there is  in his

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judgment  no  sufficient  ground  for  proceeding. Section 204  lays down  that if  in the opinion of the Magistrate  taking cognizance  of  an  offence there is  sufficient  ground  for  proceeding,  he shall issue a summon or a warrant, as the case may require. What  is the true scope and effect of the expression 330 "sufficient ground  for proceeding"  occurring  in the aforesaid  two sections  ? This was considered by this  Court in  Vadilal Panchal  v.  Dattatraya Dulaji Ghadigaonker  (1). With  reference  to  ss. 200, 202 and 203 of the Code of Criminal Procedure it was there observed:           "The  inquiry  is  for  the  purpose  of      ascertaining the  truth or  falsehood of  the      complaint; that  is, for ascertaining whether      there is evidence in support of the complaint      so as  to justify  the issue  of process  and      commencement  of   proceedings  against   the      person concerned.  The section  does not  any      that a  regular trial for adjudging the guilt      or otherwise of the person complained against      should take  place at  that  stage;  for  the      person  complained  against  can  be  legally      called upon  to answer  the  accusation  made      against him  only when  a process  has issued      and he is put on trial." It was further observed that if the Magistrate had not misdirected  himself as  to the  scope  of  an enquiry under  s. 202  and had  applied  his  mind judicially to  the materials  before him, it would be erroneous  in law  to hold that a plea based on an exception could not be accepted  by in arriving at his  judgment. In  another  decisions  of  this Court Ramgopal  Genapatria Ruia v. State of Bombay (2) the  expression "sufficient grounds" occurring in ss.  209, 210  and 213  of the Code of Criminal Procedure was  considered and it was held that the expression did not mean sufficient grounds for the purpose of  conviction but  meant such evidence as would be  sufficient to put the accused upon trial by the  jury dealing  with the first complaint the learned Chief  Presidency Magistrate  proceeded to consider not whether there was 331 sufficient  ground   for  proceeding   within  the meaning of ss. 203 and 204 of the Code of Criminal Procedure  but   whether  there   was   sufficient evidence for conviction of the accused persons. In my opinion, this approach was completely wrong and resulted in a manifest miscarriage of justice. The learned Chief President Magistrate said:           "In cases  depending  on  circumstantial      evidence in  order to  justify any  inference      that  an   offence  has  been  committed  the      incriminating facts must be incompatible with      innocence of the person accused and incapable      of  explanation  upon  any  other  reasonable      hypothesis than  that of  his guilt.  If  the      circumstances are  found to  be as consistent      with the  guilt of  the accused, no inference      of guilt  can be  drawn. In  the present case      the circumstances  above equally  may lead to      the inference  that the  document  was  ante-

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    dated  and  might  or  might  not  have  been      forged. Therefore  the circumstances  are not      precise to be of any value as evidence." These observations  clearly show  that the learned Chief Presidency Magistrate misdirected himself as to the true scope and effect of ss. 203 and 204 of the Code of Criminal Procedure. He did not keep in mind the  true purpose  of the  enquiry before him which was  to ascertain whether there was evidence in support  of the  complaint so as to justify the issue of  process and  commencement of proceedings against the  accused persons. He further failed to keep in  mind that  ss. 203 and 204 of the Code of Criminal Procedure  did not  say  that  a  regular trial for  judging the  guilt or  otherwise of the person complained  against should  take  place  at that  stage.   It  was   not  for   learned  Chief Presidency Magistrate  to apply  the test  whether the circumstances  were or  were not  incompatible with the, innocence of the accused persons. The 332 purpose of  the enquiry  before him  was merely to ascertain prime  facie the  truth or  falsehood of the complaint.  Instead of holding an enquiry into the  complaint,   the  learned   Chief  Presidency Magistrate proceeded  as though  he was trying the ease  itself  on  merits.  I  consider  that  this mistake  on   the  part   of  the   learned  Chief Presidency Magistrate  gave a  wrong direction  to the whole  proceedings on  the first complaint and the order  of dismissal passed by him was due to a manifest error  and  resulted  in  miscarriage  of justice.      The second  exceptional circumstance is as to the presence  of the  telephone number "City 6091" printed on  the sheet of paper on which were typed the minutes  of the  proceedings dated January 16, 1948. When  the first  complaint was dealt with by the Chief  Presidency Magistrate  no evidence  was led to  show that  the City  Exchange did not come into existence  until December,  1948 and that the telephone connection  relating to  that particular number was  obtained for  the first  time  by  the Hindusthan Co-operative  Insurance Society Ltd. on or about  March 18, 1949. This I think, would be a new matter which was not considered when the first complaint was  dismissed under  s. 203 of the Code of Criminal  Procedure. There  was a  good deal of argument as to whether this matter relating to the City Exchange was known to the complainant and his brothers from  before, and if so, why they did not bring it  to  the  notice  of  the  learned  Chief Presidency Magistrate  who dealt  with  the  first complaint. it  appears that  an application  dated June 7,  1955 was  made before Debabrata Mookerjee J. who  heard the  application  in  revision  with regard to the first complaint. In that application certain statements  were made  with regard  to the City Exchange.  Those statements did not, however, include any  averment as  to the  knowledge of the complainant, Promode Ranjan Sarkar, about 333 the  facts  relating  to  the  City  Exchange  and telephone  number  "City  6091".  The  application merely stated  that the  facts stated therein were

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matters of  public history and it was essential in the  ends  of  justice  to  take  judicial  notice thereof.   Debabrata   Mookerji,   J.   apparently rejected this  application but  did not record any formal orders  on that  date. He  recorded  formal orders after  he had  dismissed the application in revision. He said therein that he was not prepared to take  into consideration  the facts  alleged in the application dated June 7, 1955 as they related to new  matters. The  argument on  behalf  of  the appellants before us is that the facts relating to the City  Exchange were  not new  matters, because the complainant, Saroj Ranjan Sarkar, nowhere said that he  did not  know them  before. The argument, therefore is  that it  does not fulfil the test of "new facts which the complainant have no knowledge of or  could not  with reasonable  diligence  have brought forward  in the previous proceedings". The learned Advocate  for the  respondent has,  in  my opinion, rightly  submitted that  it  is  somewhat illogical to  say at  one stage of the proceedings that the  matter was  a new  matter and could not, therefore, be  taken into  consideration and  at a later stage to say that it is not a new matter and therefore could not be taken into consideration.      This much,  however, is clear that the matter relating to  the City  Exchange and  in particular telephone  number  "City  6091"  was  not  at  all considered when  the first complaint was dismissed under s.  203 of  the Code  of Criminal Procedure. This matter is of some importance because if there was no  such telephone number on January 16, 1948, the minutes of the proceedings purporting to be of that date must have come into existence on a later date. This  would have great relevance and bearing on the  allegation of  forgery made with regard to the minutes  of the  proceedings dated January 16, 1948. 334      On behalf  of Saurindra  Mohan  Basu  it  was further contended  that there  was not  even prima facie evidence  against him  and the learned Chief Presidency Magistrate was wrong in issuing process against him.  It is  only necessary  to point  out that the learned Chief Presidency Magistrate found that  there   was  a   prima  facie  case  against Saurindra  Mohan   Basu.  He   had  attested   the signature of  the late Nalini Ranjan Sarkar and if that signature  was forged,  then  that  would  be prima facie  evidence against Saurindra Mohan Basu also.      My learned  brethren have taken the view that the entertaining  of the  second complaint  in the circumstances of this case is a gross abuse of the processes of  the Court.  I find  myself unable to subscribe to  that view. My conclusion is just the opposite, namely,  that the  entertaining  of  the second complaint  fully serves  the  interests  of justice. I  am further  of the  opinion  that  its dismissal would  defeat the  ends of  justice.  In this connection,  I have  already referred  to the two exceptional  circumstances which exist: one is that the  learned Chief  Presidency Magistrate who dealt  with   the   first   complaint   completely misdirected himself  as  to  the  true  scope  and

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effect of  ss. 203 and 204 of the Code of Criminal Procedure; the second is that Debabrata Mookerjee, J. wrongly  refused to take into consideration the circumstances relating  to the installation of the City Exchange  and telephone  number "City  6091", circumstances which  had a decisive bearing on the allegation of  forgery made  with  regard  to  the minutes of the proceedings dated January 16, 1948. Even a  cursory perusal  of the order of the Chief President  Magistrate  (Shri  N.  C.  Chakravarti) dated August  6, 1954  with regard  to  the  first complaint shows  that the learned Chief Presidency Magistrate proceeded  on the  footing as though he was trying a case based entirely on circumstantial evidence; he formulated 335 the   tests    for   drawing    conclusions   from circumstantial evidence  and applying those tests, he came  to the  conclusion that the complaint was not true.  He rejected  the evidence  of the hand- writing expert  as though  it was  his function to try the  case. He  rejected the  enquiry report of Shri A.  B. Syam  (who held that there was a prima facie case  for the  issue  of  process)  on  very insufficient grounds.  He even  went to the length of    judging    for    himself    the    peculiar characteristics of  Nalini Ranjan  Sarkar’s  hand- writing  depending   on  the  personality  of  the writer. In  my view,  in  all  these  matters  the learned Chief  Presidency  Magistrate  misdirected himself as to the true scope of the enquiry before him and  he forgot  that what  he had  to find was whether prima  facie there was believable evidence in  support   of  the   allegations  made  in  the complaint. This  does not  necessarily mean that a Magistrate dealing with a complaint is obliged "to bind himself  to a  mere mechanical  or  a  wholly uncritical acceptance of the complainant’s story". Indeed, it  is the duty of the Magistrate to judge the materials  on which he has to make up his mind as to  the sufficiency  or otherwise of the ground for proceeding  further with  the complaint and in judging the materials he must sift them and submit them to a critical examination. This aspect of the question was argued before Debabrata Mookerjee, J. and he  referred to it in his judgment. I say this without meaning  any  disrespect  to  the  learned Judge, but  it appears  to me  that he  missed the distinction which was pointed out by this Court in Ramgopal Ganpatrai  Ruia v. The State of Bombay(1) namely that  the expression  "sufficient  grounds" occuring in  ss. 209,  210 and  213 of the Code of Criminal  Procedure   does  not   mean  sufficient grounds for  the purpose  of conviction, but means such evidence  as is sufficient to put the accused person upon trial by the jury. In ss. 203 and 204, Criminal Procedure Code, the expres- 336 sion is  "sufficient ground  for proceeding" which really means sufficient ground for proceeding with the complaint.  Sufficient ground  for  proceeding with the  complaint is  one matter  and sufficient ground for convicting an accused person is quite a different matter. It is this distinction which has to be  kept in mind and the failure to keep such a

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distinction  in  mind  in  the  present  case  has resulted in a manifest error. Debabrata Mookerjee, J. detailed  seven circumstances as those on which the  complainant   relied  in   support   of   the allegation of  forgery. He  then went  on to  deal those circumstances  as though the function of the Court then  was to  find  out  whether  there  was sufficient  ground   for  convicting  the  accused person. I refer particularly to the view expressed by the  learned Chief Presidency Magistrate to the effect that one of the documents in question might have  been  ante-dated  by  Nalini  Ranjan  Sarkar himself. This  was a  suggestion made on behalf of the accused  persons as  a possible defence to the charge of  forgery and  it was not the function of the Chief  Presidency Magistrate  to consider  the defence at  that stage.  Debabrata  Mookerjee,  J. himself said:           "If, on  the other  hand, the Magistrate      has met  the facts alleged by the complainant      by  anticipating  possible  defences  to  the      charge,  thus  travelling  beyond  the  facts      themselves  and   the  inferences   and   the      probabilities legitimately raised by them, he      must be  held to  have exceeded the allowable      limits   of    an   initial   test   of   the      complainant’s story." Yet,  the  possible  defence  that  Nalini  Ranjan Sarkar might  have himself ante-dated the document was not  only  considered  by  the  learned  Chief Presidency  Magistrate   but   was   accepted   by Debabrate  Mookerjee  J..  This,  in  my  opinion, clearly  demonstrates   the  manifest   error   or injustice which  has taken  place  in  this  case, though in the concluding part of his 337 judgment Debabrata  Mookerjee,  J.  expressed  the view that  he did  not consider  that the  learned Chief Presidency  Magistrate had  over-stepped the permissible limits of a preliminary probe into the truth or  otherwise of the complainant’s story. He further said  that in  his view  the learned Chief Presidency Magistrate  in  sifting  the  materials offered did  not dispose of them by anticipating a possible defence  of  the  parties;  yet  the  one possible defence to the charge of forgery was that Nalini Ranjan  Sarkar might himself have antedated the document in question and that very defence was considered and  accepted not  only by  the learned Chief  Presidency   Magistrate  but  by  Debabrata Mookarjee, J. also.      The second  mistake which  led to  a manifest injustice   was   the   refusal   to   take   into consideration the  circumstances relating  to  the installation  of   the  City   Exchange  and   the telephone number "City 6091". Debabrata Mookerjee, J. made no orders on the application dated June 7, 1955. In his final order he said:           "The application  speaks for  itself.  I      was not  prepared on  that date  to take  any      notice of  the new  matters mentioned in that      application and I adhere to my decision." In my  view Debabrata Mookerjee, J. was grievously in error  in rejecting  the application. As I have said earlier,  the circumstances  relating to  the

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installation of  the City  Exchange and  telephone number "City  6091" had  a decisive bearing on the truth or  otherwise of  the allegation  of forgery and  to  reject  the  application  to  take  those circumstances into  consideration really  amounted to a  denial of  justice. Debabrata  Mookerjee, J. took the view that it was a new matter which could not be  taken into consideration and, pradoxically enough, the argument before us is that not being a new matter,  it should  not have  been taken  into consideration 338 in connection  with  the  second  complaint.  This paradox clearly  demonstrates the  injustice  that will  result   from  a   failure  to   take   into consideration circumstances  which are decisive of the allegations  made in  the complaint.  When the complainant made  an application for a certificate for appeal  to the Supreme Court against the order passed by  Dababrata Mookerjee.  J., he forcefully contended that  the refusal  to take notice of the circumstances relating  to the installation of the City Exchange  amounted to  a denial  of  justice. This application  was dealt with by a Bench of two Judges of  the Calcutta  High Court (Das Gupta and Bachawat, JJ.).  The learned  Judges expressed the view that  if they  were dealing  with the matter, they would  have thought  it right to refer to the appropriate books  for ascertaining  the  date  on which the City Exchange came into existence. They, however, felt  that  the  matter  was  within  the discretion of Debarata Mookerjee, J. and they were not prepared  to give a certificate in a matter of discretion. Another  point which  was urged before that  Bench   was  this.  The  complaint  was  for offences triable  by the Court of sessions and the question  which   the  learned   Chief  Presidency Magistrate had  to put himself was not whether he, for himself,  believed the  allegations to be true but whether  the materials  before him  were  such that thereupon  a reasonable  body  of  men  might believe the  allegations to  be true.  The learned Judge said:           "In our  judgment there  is considerable      force in  this argument, but at the same time      we have  to take notice of the fact that this      question does not appear to have been decided      by the courts." Since those observations were made, a decision has been  given   by  this  Court  and  that  decision supports the  contention urged  on behalf  of  the complainant. The matter then came to this Court on an applica- 339 tion for  special leave,  and  special  leave  was granted by  this Court  on February  13, 1956.  An appeal was  filed in  pursuance  of  that  special leave,  but   ultimately  Promode   Ranjan  Sarkar withdrew  his  appeal  by  filing  a  petition  on February 3,  1959. In that petition he stated that at the  intervention of  common friends  and  well wishers  of   the  parties,  he  had  settled  his disputes with  the respondents therein and did not want to proceed with the appeal a statement which, in the  circumstances of this case, amounts almost

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to  compounding   a   felony.   The   appeal   was accordingly  withdrawn  on  March  12,  1959.  The present complaint, Saroj Ranjan Sarkar, alleged in his petition  of complaint  that the withdrawal of the  appeal   filed   in   this   Court   in   the circumstances  stated   above  was  due  to  undue influence  exercised   by  the   accused  persons. Whether that allegation is correct or not can only be determined  after evidence  has been led. There are,  however,  circumstances  which  seem  to  me indicate that the withdrawal of the appeal in this Court was for the purpose of defeating the ends of justice. The  accused persons  must have  realised that if  the evidence relating to the installation of the City Exchange and telephone No. "City 6091" was available  and considered, then there would be no escape  from the  position that  the minutes of the proceedings  of  the  Board  meeting  of  N.R. Sarkar and  Co. Ltd.,  dated January 16, 1948 must have been forged and this aspect of the matter was very  rightly  emphasised  by  the  learned  Chief Presidency Magistrate  (Shri  Bijayesh  Mukherjee) who dealt with the second complaint as also by the Special Bench  of three  Judges who dealt with the matter on  the revision  applications made against the  order   of  the   learned  Chief   Presidency Magistrate on  the second  complaint. It  is  also worthy of  note that  this Court must have granted special leave  in respect  of the  order passed on the first  complaint, because  it felt  that there were arguable points in support of the 340 application for  special leave, one of such points apparently  being  the  refusal  to  consider  the circumstances relating  to the installation of the City Exchange. On the second complaint the learned Chief Presidency  Magistrate,  as  also  the  High Court, took those circumstances into consideration and rightly  held that those circumstances clearly indicated  that   the  allegations   made  in  the complaint were prima facie true. The learned Chief Presidency Magistrate  further  held  that  having regard to  the antecedent circumstances, there was no undue  delay in filing the second complaint. He further  held  that  there  was  no  intention  to blackmail, in  the sense  that one  brother having failed on the first complaint, another brother was fraudulently trying  to start  afresh the criminal law in motion. These findings of the learned Chief Presidency Magistrate  were accepted  by a Special Bench of  three Judges of the Calcutta High Court. I  have   heard  nothing  in  the  course  of  the arguments addressed  before us which would justify me to go behind those findings, particularly in an appeal filed  by special  leave under  Art. 136 of the Constitution.  The  learned  Chief  Presidency Magistrate and  a Bench  of three  Judges  of  the Calcutta  High  Court  held  specifically  on  the second complaint that there was a prima facie case and the  dismissal of the first complaint resulted in manifest  injustice. I see no reasons to differ from the  view thus expressed by the learned Chief Presidency Magistrate and the High Court.      For  these   reasons  I   have  come  to  the conclusion that  there are  no  good  grounds  for

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interfering with  the judgment  and order  of  the Special Bench  dated December 22/33, 1960. I would accordingly dismiss the two appeals.      The Judgment  of Kapur and Hidayatullah, JJ., was delivered by      KAPUR, J.-There  are two  appeals against the judgment and order of the High Court of 341 Calcutta which raise the question of competency of a second  complaint in  regard to  the same matter after the first complaint has been dismissed under s. 203  of the  Code of  Criminal  Procedure.  The respective appellants in the two appeals are P. N. Taluqdar and  Sourindra Mohan  Basu an attorney of Calcutta against  whom process  has been issued by the Chief  Presidency  Magistrate  Calcutta  on  a complaint filed  by the  respondent  Saroj  Ranjan Sarkar.      The facts of these appeals are these: In 1944 a private  limited company-N.  R.  Sarkar  &  Co., Ltd.-was formed  by the late Mr. N. R. Sarkar, who was a well known financier and industrialist and a public  man   of  Bengal.  This  company  was  the Managing Agent of several public limited companies such as  Hindusthan Development  Corporation Ltd., Hindusthan    Chemicals     Limited,    Hindusthan Pilkington Glass  Works  Limited  etc.  Mr.  N.  R Sarkar was the Managing Director of N. R. Sarkar & Co., Ltd. Out of the share capital of this company he held  4649 shares.  His younger brother Promode Ranjan Sarkar  held 50  shares.  Appellant  P.  N. Taluqdar who was a paid employee of the Hindusthan Cooperative Insurance  Co., Ltd.  held 300  shares and was  a director  of  the  Company  and  Shanti Ranjan Sarkar,  a son  of N.  R. Sarkar’s deceased brother, held  one share.  As  Mr.  N.  R.  Sarkar became the  Finance Minister  in the  West  Bengal Government,  he   obtained  leave  of  absence  on January 4,  1948, from  the  directors  of  N.  R. Sarkar &  Co. Ltd.  for a period of one year which was subsequently  extended for  another year. This was by  a resolution passed on March 10, 1948. Mr. N. R.  Sarkar joined the Government on January 23, 1948 and  in August  1948 Dr.  N. N.  Law became a director of N. R. Sarkar & Co., Ltd.      On July  31, 1951 Mr. N. R. Sarkar executed a deed of trust in respect of 2920 shares out of his 342 holding in Hindusthan Cooperative Society Ltd. and 3649 shares out of the shares held by him in N. R. Sarkar &  Co. Ltd.  By this  deed he  appointed as trustees  his   younger  brother   Promode  Ranjan Sarkar, appellant P. N. Taluqdar and Dr. N. N. Law and the  beneficiaries under  the trust  deed were his   four    younger   brothers   including   the complainant and  Shanti Ranjan Sarkar, his nephew. It is alleged that the balance of 1,000 shares was to be  kept  in  trust  by  the  appellant  P.  N. Taluqdar for  the  benefit  of  his  brothers  and nephew. N. R. Sarkar died on January 25, 1953.      It is alleged that a few days after the death of Mr.  N. R.  Sarkar,  the  appellant,  Sourindra Mohan Basu  in a  casual manner  informed  Promode Ranjan Sarkar  that his  brother N.  R. Sarkar had executed two documents one an unregistered deed of

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agreement dated  January 19,  1948, appointing the appellant P.  N. Taluqdar as the Managing Director of N. R. Sarkar & Co., Ltd. and a deed of transfer dated February  5, 1951, transferring 1,000 shares in  N.  R.  Sarkar  &  Co.  Ltd.,  in  his  P.  N. Taluqdar’s) favour.  Promode Ranjan Sarkar and his brothers without  giving  much  credence  to  this information wanted  to see  the documents but they were not  allowed to  do so.  On  July  31,  1953, appellant  P.   N.  Taluqdar   resigned  from  the Hindusthan Cooperative  Insurance Society Ltd., in order to  take control  of N. R. Sarkar & Co Ltd., as it  Managing  Director.  This  led  to  trouble between Promode Ranjan Sarkar and the appellant P. N. Taluqdar  and  there  was  some  correspondence between Promode Ranjan Sarkar and the appellant P. N. Taluqdar  which it  is unnecessary to refer to. At a  meeting of  the Board  of Directors of N. R. Sarkar &  Co., held  on September  22,  1953,  the appointment  of   appellant  P.   N.  Taluqdar  as Managing Director  of N. R. Sarkar & Co. Ltd., was renewed for a period of seven years. This in spite of the 343 protest of  Promode Ranjan  Sarkar and in spite of the fact  that that  item was not on the agenda of the meeting.      On October 1,1953, Promode Ranjan Sarkar took inspection of  the agreement. On October 13, 1953, he took  inspection of  the Minute  book and  took photostat copies  of some of the documents but not of the  resolution of  January  16,  1948.  It  is alleged that the appellants and other entered into a  criminal  conspiracy  and  fraudulently  forged certain  documents  which  in  the  complaint  are described thus:           (a)  "An unregistered  deed of agreement                purporting to have been executed by                the late  Sri Nalini  Ranjan Sarkar                as  Governing  Director  of  N.  R.                Sarkar &  Company Limited  on  19th                January  1948,  (while  he  was  on                leave as  stated above)  appointing                accused No.  1 (P.  N. Taluqdar) as                the  Managing  Director  of  N.  R.                Sarkar  &   Company  Limited  on  a                remuneration  of   Rs.   1,500-100-                2,000/-  per  month  and  the  deed                bears the  signature of accused No.                2  (S.   N.  Basu)   as  the   sole                attesting witness.           (b)  A transfer  deed in respect of 1000                shares of  N. R. Sarkar & Co. Ltd.,                which has been entrusted to accused                No.    1    as    stated    before,                transferring them  to accused No. 1                for an alleged consideration of Rs.                1,00,000(Rupees  One   Lakh)   also                purporting to have been executed by                the late  Sri Nalini  Ranjan Sarkar                on 5th February, 1951, with accused                No. 2 as attesting witness both for                the transferor and transferee. 344           (c)  Minutes of  the proceedings  of the

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              Board. Meetings  of the  said N. R.                Sarkar &  Company Limited including                those  of   a  meeting  dated  16th                January, 1948,  purporting to  bear                the signature of the aforesaid late                Sri Nalini Ranjan Sarkar."      These documents,  it is  alleged, are  forged and have  been used and by the use of these forged documents a  fraud has  been perpetrated. On April 3, 1959,  respondent filed  in the  Court  of  the Chief Presidency Magistrate, Calcutta, a complaint under sections  467, 471  read with  s. 109 of the Indian Panel  Code against the two appellants, Dr. N. N.  Law and  A. Chakravarti.  Document No.  (b) above is  not the  subject matter of the complaint because a  suit in regard to it has been filed and is pending  in the  Calcutta High Court. On May 7, 1959, process was issued against the appellants by the Chief  Presidency Magistrate.  Before  dealing with the  allegations  in  this  complaint  it  is necessary to give some further facts of the case.      On December  12, 1953  Pramode  Rajan  Sarkar laid  an  information  with  the  Commissioner  of Police, Calcutta, against the persons against whom the above  mentioned complaint was later filed. It appears that  the matter  was investigated  by the police and  by a  letter dated  February 16, 1954, the Police Commissioner expressed the opinion that there was  no substance  in the  allegations which were being  made by  Pramode Ranjan Sarkar against the appellants  and two  others. He  stated "....I have given  this matter very careful consideration gone through  various reports  and papers and even examined   an   important   witness   myself.   My examination  has   led  me   to  conclusion   that allegations are false and vexations." On March 17, 1954, Pramode  Ranjan  Sarkar  filed  a  complaint under ss.  467, 471  and ss.457,  471 read with s. 109. After setting out the facts which have 345 been given  above and after referring to the three documents which  were alleged  to have been forged it was  stated that  the  deed  of  agreement  was engrossed on  a stamp  paper purchased in the name of P.D. Himmatsinghka & Co., a firm of solicitors, instead of  in the  name of  the parties; that the resolution of January 16, 1948, which purported to bear the signature of the deceased was in fact not signed by  him; that during the lifetime of Nalini Ranjan Sarkar  and  after  a  considerable  period after his  death the  appellant, P.  N.  Taluqdar, never alleged  that  he  had  been  appointed  the Managing Director  of N. R. Sarkar & Co. Ltd., nor did even  appear from  any resolution of the Board of N.  R. Sarkar  & Co., that he was appointed the Managing Director  until September,  1953. Certain other allegations  which need  not be  set out  at this stage  were also  made in  this complaint for the purpose  of showing  that the  appellants  had been  guilty  of  forgery  and  for  using  forged documents and for conspiracy. The matter was heard by the  Chief  Presidency  Magistrate  Mr.  N.  C. Chakraborty who  after examining all the witnesses who  were   produced  before   him  dismissed  the complaint by  an order  dated August  6, 1954. The

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learned Chief  Presidency Magistrate  examined the handwriting expert  and after taking all the facts into consideration he held:           "that  the   evidence   on   handwriting      including  the  opinion  of  the  Handwriting      Expert does  not  support  the  complainant’s      version."      Against this  order the  complainant  Pramode Ranjan Sarkar took a revision to the Calcutta High Court which  was heard  by Debabrata Mookerjee, J. Before him  three contentions were raised (1) that the Chief Presidency Magistrate erred in examining the witnesses  himself after  he had  received the result of the enquiry held by Mr. A. B. Shyam, 346 another Magistrate, under s. 202, Code of Criminal Procedure;    (2)     the    learned    Magistrate misunderstood the  scope of  ss. 202  and 203  and misdirected himself  by insisting  upon a standard of proof  which the  law did  not require  at  the initial stage  when the  only question was whether the process  should issue  or not  and  the  third contention related  to the  power of  revision  of High Court  under s.  439 when dealing with orders of a  Chief  Presidency  Magistrate.  The  learned Judge held against the complainant, Pramode Ranjan Sarkar on  the points that were raised before him. He held  that it  was open to the Chief Presidency Magistrate to  examine witnesses;  (2) the learned Magistrate had  not misdirected  himself in regard to the  scope of ss. 202 and 203 and that he could dismiss the complaint if in his judgment there was no sufficient  ground for proceeding. He also held that the  order of  Magistrate was  liable  to  be interfered with if it was made in disregard of the rules of  procedure or  it was so grossly improper or so  palpably incorrect as to require a revision in the interest of justice. The learned judge then examined the  evidence  which  had  been  produced before  the  Magistrate  and  taking  the  various circumstances into  consideration  discharged  the rule and  dismissed the revision, holding that the complainant Pramode  Ranjan Sarkar  was guilty  of undue  delay   in  taking   action   against   the appellants, because he came to know on October 13, 1953, as to the forged nature of the documents and did not  take any  action till  he  wrote  to  the Police Commissioner  to  which  he  got  reply  on February  16,  1954,  and  he  did  not  file  any complaint or  take any action till march 17, 1954, and this  delay was unexplained. He also held that the complainant  Pramode Ranjan Sarkar’s belief in regard to  forgery  was  not  established  by  the evidence which  had been  produced because  (1) he came to  know about the agreement complained of in February, 1953, but he discredited it and did 347 not take  any action;  (2) that when the agreement came up  for renewal  on September  22, 1953,  for another term  of the  7 years he did not oppose it on the  ground that  it was a forgery but on legal grounds. The  learned judge  did not  believe  the evidence of  Pramode  Ranjan  Sarkar  that  up  to February, 1954, he considered it absurd that there could be  such a  document.  He  referred  to  the

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correspondence   which    passed    between    the complainant and  the appellant  P. N. Taluqdar. He also  considered  the  evidence  relating  to  the watermark and  the circumstances in support of the allegation of  the theory of forgery and not being satisfied  with  the  evidence  he  dismissed  the revision petition  and thus the order of the Chief Presidency Magistrate  Mr. Chakraborti was upheld. It  may   be  pointed   out  that   on  behalf  of complainant Pramode  Ranjan Sarkar  an application was made on June 6, 1955, drawing the attention of the Court to the fact that on the sheet of a paper on which  the  minutes  of  the  meeting  held  on January 16, 1948, had been typed there was printed Telephone "City  6091" and  that Exchange  had not come into  existence till  December, 1948.  It was not stated  when the  complainant came  to know of this fact.  The learned  Judge did  not  pass  any separate order  on this  application and  did  not take it into consideration in his judgment.      Against this  order an  application was  made for a  certificate under  Art. 134(1)(c) which was dismissed but  in that  order this  fact as to the City Exchange  coming into  existence in December, 1948, has  been  taken  note  of.  Pramode  Ranjan Sarkar then  applied to  this  Court  for  Special Leave which  was granted on February 13, 1956, but the  appeal   was  withdrawn   and  was  therefore dismissed or March 2, 1959.      The present  respondent Saroj  Ranjan  Sarkar then brought a complaint under the same sections 348 on April  3, 1959,  making the same allegations as were made  by his  elder  brother  Pramode  Ranjan Sarkar but  there is  one further allegation as to the Telephone  City Exchange  which did  not  find place in the previous complaint, In this complaint after referring  to the  facts which have been set out above it was alleged in paragraph 5 as follows :-           "That  in   order  to   assume  complete      control over N. R. Sarkar & Co., Ltd. and the      concerns  under   its  Managing  Agency,  the      accused, entered  into a  criminal conspiracy      with  each   other  and  others  unknown,  to      dishonestly and fraudulently forged a Deed of      Agreement, a  Deed of  Transfer  and  make  a      false document,  to wit, minute book of N. R.      Sarkar &  Co. Ltd.,  and in pursuance thereof      dishonestly and  fraudulently  forged  and/or      caused to  be forged  and used as genuine the      said documents."      The  grounds   for  forgery   were  that  the unregistered deed  dated  January  19,  1948,  was engrossed on  a stamp  paper purchased in the name of M/s. P. D. Himmatsinghka & Co; that the late N. R. Sarkar  was on leave granted by the company and he never  attended any  meeting of  the Board  for more than  four years  as long as he was a Finance Minister; that  the signature  of Mr. N. R. Sarkar on the  resolution dated  January  16,  1948,  was forged; that during the lifetime of N.R. Sarkar it was  never  given  out  by  the  appellant  P.  N. Taluqdar that  he had  been appointed  a  Managing Director,  that   in  none   of  the   papers  and

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correspondence and  resolutions of the Board until September,  1953,   does  it   appear   that   the appellant,  P.   N.  Taluqdar,  was  its  Managing Director;  that  the  appellant,  P.  N.  Taluqdar continued to  hold  his  post  in  the  Hindusthan Cooperative Insurance  Society Ltd.  up to the end of July,  1953; that  the signature in the deed of appointment was  halting  and  appeared  to  be  a forgery  even   to  the   naked  eyes;   that  the resolution 349 for renewal for seven years was passed in spite of the protest  of Pramode  Ranjan Sarkar  who was  a director  of   N.  R.   Sarkar  &  Co.  Ltd.,  and inspection of  the deed  of  appointment  was  not given to  Pramode Ranjan  Sarkar in  spite of  his demands.  It   was  further   alleged   that   the resolutions of  the Board of Directors were all on loose sheets  of paper,  that the signature on the resolutions were  forged; that  there was internal evidence to show that the genuine minutes book had been dishonestly  changed; that the minutes of the proceeding of  the Board of Directors said to have been held  on January  16, 1948,  were on  a typed sheet; that  the Telephone  No.  "City  6091"  was printed thereon  and the  City Exchange was not in existence  in   January,  1948,   but  came   into existence in  December, 1948.  It was  prayed that the accused  named therein  which included the two appellants be proceeded against under ss. 467, 471 read with s. 109 of the Indian Penal Code. It will be noticed therefore that all the allegations made by Saroj  Ranjan Sarkar are the same as those made by Pramode  Ranjan Sarkar  except in regard to the City Exchange Telephone Number.      This  complaint   was   accompanied   by   an affidavit not  of complainant  Saroj Ranjan Sarkar but  of  Shanti  Ranjan  Sarkar,  his  nephew.  In paragraphs 1 to 7 of this affidavit he stated that the facts  in regard to the Calcutta City Exchange were matters  of public  history as they were duly published in  the  columns  of  "statesman"  dated December 29,  1948, and  he also stated "that I am aware  of   the  facts  and  circumstances  stated above," but  he did  not say as to when he came to know about  the City  Exchange matter. It may also be noted that in the application which was made by the complainant  Pramode Ranjan Sarkar in the High Court  before   Debabrata  Mookarjee  J.,  it  was submitted that judicial notice be taken of the new 350 telephone exchange  under s.  57 but  it  was  not stated as  to when  that complainant  came to know about the new Telephone Exchange Number. That fact has been  stated in the affidavit of Shanti Ranjan Sarkar in almost the same vague manner.      The learned  Chief Presidency Magistrate, who took  cognizance  of  the  second  complaint,  Mr. Bijoyesh Mookerjee,  after considering  the  whole material placed  before him issued process against the appellants  only. He  held that  there was  no delay on  the part of the respondent in making the complaint that  the  previous  complaint  and  the result thereof  was no  bar to  the filing  of the second  complaint;  that  the  complaint  was  not

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brought with  a  view  to  blackmail  the  accused including the appellants, that what the brother of the respondent  did, did  not lay  the  respondent open to  the charge of blackmail. On the merits he took into  consideration the fact in regard to the City Exchange  of which  according to  the learned Magistrate he  could take judicial notice under s. 57  of  the  Evidence  Act.  He  compared  various signatures of  the late  N. R.  Sarkar  and  after considering the elaborate order of his predecessor he said :-           "I have  read and  re-read it  and  with      respect too  due to  one of his eminence, but      it is  my misfortune  that I  have  not  been      persuaded.   There    are    various    other      considerations which point to the ineluctable      prima facie  conclusion of forgery. But it is      not proper  that I  burden my  order with all      that at this stage." He held  that he  was satisfied about the truth of the allegations  and there  was sufficient  ground for proceeding  against the  appellants  under  s. 204, Criminal  Procedure  Code  and  he  therefore issued process  against them but did not issue any process  against   Dr.  N.   N.  Law   and   Amiya Chakravarty who were accused Nos. 3 and 4. 351      Against this  order a  revision was  taken by the appellants  to the  High Court  and  rule  was issued against  the Chief Presidency Magistrate to show cause  why his order should not be set aside. He showed  cause and  the matter  was heard  by  a Division Bench consisting of P. B. Mukerjee and H. K. Bose,  JJ., and  the matter  was referred  to a larger Bench  because of  the  importance  of  the questions of law which arose in the case.      Three  questions   were  raised   before  the Special Bench,  (1) whether  under  the  appellate side rules  of the High Court it was competent for a Division Bench consisting of two judges to refer any matter  to a  larger bench  for decision  in a criminal matter;  (2) whether  a second  complaint could be  entertained on  the same  facts after  a previous complaint  had been  dismissed;  and  (3) whether the complaint could be taken cognizance of by the  Magistrate in  the absence  of a  sanction under s.  196A of  the Criminal Procedure Code. On all these  three points the finding of the Special Bench was against the appellants. It held that the attention of  the Chief  Justice having been drawn to the  fact that  the case  involved questions of importance it  was open  to him in the exercise of his inherent  jurisdiction to  refer the case to a larger bench  and therefore  the reference was not illegal. In  regard to  the  filing  of  a  second complaint it  held that a fresh complaint could be entertained  after   the  dismissal   of  previous complaint under  s. 203  Criminal  Procedure  Code when  there   was  manifest   error  or   manifest miscarriage of  justice or when fresh evidence was forthcoming. The Bench was of the opinion that the fact in  regard to the City Telephone Exchange was a new matter and because Pramode Ranjan Sarkar was not permitted  to take  a photostat  copy  of  the Minutes Book,  it was  possible that his attention

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was not drawn to the City Telephone Exchange which was not in existence at the relevant time and that there was sufficient reason for Pramode 352 Ranjan Sarkar  for not  mentioning the  matter  of City Exchange  in his complaint. It also held that the  previous   Chief  Presidency  Magistrate  Mr. Chakraborty had altogether ignored the evidence of a large  number of witnesses who were competent to prove the  handwriting  and  signature  of  N.  R. Sarkar  and   he  had  no  good  reasons  for  not accepting their  evidence. It  could not  be  said therefore that there was a judicial enquiry of the matter  before   the  previous   Chief  Presidency Magistrate; the  decision was rather arbitrary and so resulted  in manifest  miscarriage of  justice. The Court  was of the opinion therefore that there was no  reason to  differ from  the finding of the Chief Presidency  Magistrate Mr. Bijoyesh Mukerjee and that  there was a prima facie case against the appellants. The  rules were  therefore discharged. It  is   against  this   judgment  and   that  the appellants have  come in  appeal to  this court by Special Leave.      Four  appeals   were   filed   by   the   two appellants, two  against the  order  of  the  High Court of Calcutta dismissing the revision petition and two  against  the  order  of  the  High  Court refusing a  certificate under  Art. 134 (1) (c) of the Constitution.  As this  Court granted  special leave  against   the  order   of  the  High  Court dismissing the  Revision Petition  the two appeals against the  order refusing  a  certificate  under Art. 134  (1) (c) became infructuous and therefore were not  pressed. It  is only the appeals against the judgment  and order of the High Court refusing to quash the order of the learned Chief Presidency Magistrate, Mr.  Bijoyesh Mukerjee,  which survive for decision.      The first  question to be decided and that is the most  vital question  in the  case is, whether the second  complaint filed by Saroj Ranjan Sarkar respondent should  have been  entertained  ?  This complaint was brought on April 3, 1959, the appeal in this Court brought by Pramode Ranjan Sarkar 353 the complainant  in the previous complaint, having been withdrawn  on March  2, 1959.  The respondent holds no shares in N. R. Sarkar & Co. Ltd. He is a beneficiary under  the deed  of trust  in trust in regard to  certain number  of shares. In regard to the unregistered  deed of  agreement appointing P. N. Taluqdar  as Managing Director of N.R. Sarkar & Co. Ltd.,  he can have no interest. As regards the transfer deed  of 1,000  shares of  N. R. Sarkar & Co. Ltd., which it is claimed were entrusted to P. N. Taluqdar  appellant  for  the  benefit  of  the respondent and  his brothers,  a separate suit has been brought  and is not the subject matter of the criminal  complaint.   There  then   remains   the resolution of  the Board  dated January  16, 1948, which  stands   on  the   same  footing   as   the appointment  to   Managing  Directorship   and  is connected with that matter and relates to it.      Under the  Code  of  Criminal  Procedure  the

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subject of  "Complaints to  Magistrates" is  dealt with in  Chapter  XVI  of  the  Code  of  Criminal Procedure. The provisions relevant for the purpose of this  case are ss.200, 202 and 203. Section 200 deals with  examination of  complainants  and  ss. 202, 203 and 204 with the powers of the Magistrate in regard  to the  dismissal of  complaint or  the issuing of  process. The  scope and  extent of ss. 202 and  203 were  laid down in Vadilal Panchal v. Dattatraya Dulaji  Chadigaonker(1). The  scope  of enquiry under s. 202 is limited to finding out the truth or  otherwise of  the complaint  in order to determine whether  process should issue or not and s.  203   lays  down  what  materials  are  to  be considered for  the purpose. Under s. 103 Criminal Procedure Code  the judgment  which Magistrate has to form  must be  based on  the statements  of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his  mind  to  materials  and  from  his  judgment whether or 354 not there  is sufficient  ground  for  proceeding. Therefore if  he has not misdirected himself as to the scope  of  the  enquiry  made  under  s.  202, Criminal  Procedure   Code,  and   has  judicially applied him  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, 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 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(1), Ram Narain Chaubey v. Panachand Jain(2), Hansabai v.  Ananda(3),  Doraisami  v.  Subramania (4). 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  Macleam, C.  J. in  Queen  Empress  v. Dolegobinda Das  (5) affirmed  by a  full Bench in Dwarka Nath  Mandal v.  Benimadhab Banerji (6). 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.      The  Chief   Presidency  Magistrate   in  the complaint  filed  by  respondent,  held  that  the second complaint  was not  unduly delayed; that s. 203 is  not a bar to the second complaint and that the 355

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complaint was  not with  a view  to blackmail  the persons accused.  On the  merits he  held that the minutes of  the proceedings  of January  16,  1948 were typed  on a sheet of paper with Telephone No. "City  6091"  and  the  City  Exchange  case  into existence later  in  the  year  and  that  on  his comparing  the  signatures  of  N.  R.  Sarkar  it appeared that  the signature  was  a  forgery.  He said:           "And governing  myself by  this test,  I      held that  forgery is  there prima  facie and      only prima facie." These then  were to  facts on  which  the  learned Presidency Magistrate  Mr. B.  Mukherjee came to a conclusion different  from that of his predecessor Mr.  Chakravorti,   who  had   inquired  into  the complaint of  Pramode Ranjan  Sarkar,  as  to  the forged nature  of the  signatures  of  Mr.  N.  R. Sarkar.      Taking first  the question of fresh evidence, the view of some of the High Courts that it should be  such   that  it   could  not  with  reasonable diligence have  been adduced is, in our opinion, a correct view of the law. It cannot be the law that the  complainant   may  first   place  before  the Magistrate some  of the  facts and evidence in his possession and if he fails he can then adduce some more evidence  and so  on. That in our opinion, is not a correct view of the law.      The next  point to  be considered is, was the mention of the telephone number "City 6091" on the note paper  on which  the resolution  was typed  a matter of  which the  previous complainant Pramode Ranjan Sarkar  was unaware and was it a fact which with  reasonable  diligence  he  could  not  place before the  Magistrate. In  the complaint filed by Pramode Ranjan Sarkar no reference was made to the City Exchange.  It is  true that  the question was sought to  be raised  as a fresh piece of evidence before Debabrata Mookerjee, J. and it was not 356 considered by him but it was not stated before him when the  then complainant  came to  know of  this fact. According to a copy of the Day Book entry by Mr. Bimal  Chandra Chakravarty,  Solicitor for the previous complainant  Pramode Ranjan Sarkar, dated October 13,  1953, photostat  copies were taken of the  share  transfer  deed  and  portions  of  the agreement dated January 19, 1948 and inspection of the Minutes Book was also taken but the request of the  complainant   to  take  photostat  copies  of certain resolutions  was refused, by the appellant S. M.  Basu. It  is significant  that according to this entry,  Santi Ranjan Sarkar was acting as the agent of  Pramode Ranjan Sarkar and was present at the time  of the inspection. After this inspection was taken,  Pramode Ranjan  Sarkar discussed  with his Legal  Advisers the peculiarities noted in the impugned  documents.  This  is  what  he  (Pramode Ranjan Sarkar)  stated as  a  witness  before  the Chief Presidency  Magistrate.  His  evidence  also shows that  he inspected  the Minutes  Book though after  much  "recriminations."  Witness  Shibakali Bagchi stated  that Minutes Book of N. R. Sarkar & Co. Ltd., was examined by him and that it appeared

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to him  that the  book was not genuine and Pramode Ranjan  Sarkar   complained  that   some  of   the signatures  were   forged.  It  appears  from  the statement  of   Pramode  Ranjan  Sarkar  that  the appellant S.  N.  Basu,  did  not  let  them  take photographs of  some of  the pages  of the Minutes Book. It is not stated by either Bagchi or Pramode Ranjan Sarkar  of what  documents they  wanted  to take  photographs   which  were  refused.  In  the statement  of   Bimal  Chandra   Chakrabarty,  the Solicitor, the  same statement  is made i. e, they wanted to take photographs of some documents which were not  allowed to  be taken. The correspondence produced by Pramode Ranjan Sarkar in his complaint proceedings  shows   that  the  Minutes  Book  was produced for  his inspection  and  was  inspected. Debabrata Mookarjee, J., in dealing with the 357 resolution of  January 16,  1948, said that it was not possible on the materials available considered prima facie that the Magistrate’s finding suffered from  such  a  grave  impropriety  as  to  require interference by  the Court.  He was of the opinion that the  complainant could  not have been unaware of the  resolution of  January 16,  1948. This  he concluded from the following; that on his own case Pramode Ranjan  managed the affairs of the Company along with  the appellant  P.  N.  Taluqdar;  that although  the   proceedings  of  the  Board  dated September 22,  1953, referred to the resolution of January 16, 1948 yet the only protest made against it by  Pramode Ranjan Sarkar was the alleged legal difficulties  consequent   on   renewal   of   the appointment  but  its  genuineness  was  not  then questioned and  it was  questioned for  the  first time on  March 17,  1954, when  the complaint  was lodged.      Against the  judgment and  order of Debabrata Mookerjee J.,  Special Leave  to  appeal  to  this Court was  obtained and one of the points taken in the application  was that the resolution was typed on a  sheet of  paper bearing  Telephone No.  City 6091 although this Telephone Exchange did not come into existence  till  December  28,  1948.  It  is significant that  Pramode Ranjan  Sarkar  did  not mention when  he came  to know about the existence of this  new fact.  It was  not,  therefore,  made clear to  the learned  Judge at  least  upto  that stage as  to when,  before or  after the filing of the first  complaint Pramode Ranjan Sarkar came to know about the existence of this piece of evidence to which so much importance is attached. Debabrata Mookerjee, J.,  also said in his judgment that the affairs of  the Company  were managed  by  Pramode Ranjan Sarkar and the appellant P. N. Taluqdar and that it  was difficult to believe that he (Pramode Ranjan) had  no access  to the  Minutes Book which showed that he himself 358 had presided  over several  meetings and also that there  was   nothing   extraordinary   about   the proceedings being  typed  on  separate  sheets  of paper and the sheets of paper being pasted in that Minutes Book  because on  some of  them there were his  own  signatures  and  it  was,  difficult  to

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believe that  tampering with  the records  went on "systematically"  for   several   months   without Pramode Ranjan  Sarkar having  seen  the  book  or detected  the   tampering.  It   was,   therefore, impossible to  blame the previous Chief Presidency Magistrate if  he held in those circumstances that there was  no  forgery  in  the  Minutes  Book  or tampering with  it. The following passage from the learned Judge’s judgment is significant:-           "Photographs of  the impugned  documents      were taken  on  the  13th  October  when  the      Minutes  Book  was  inspected.  On  the  last      mentioned date  the complainant  was  certain      about the  entire book  having been  tampered      with; but  nothing appears  to have been said      about  it,  no  challenge  made,  no  protest      entered until full five months passed when at      last the silence was broken and the complaint      was lodged  on the 17th March, 1954. It is of      course not  known what  was said  about it in      the  information   to   the   police.   These      circumstances    are    explicit    in    the      complainant’s case.  That case has only to be      presented for  these features to be seen, and      the  Magistrate   could  not   possible  have      overlooked them.  His clear  finding is  that      the Minute  Book is  genuine. I  am not  in a      position to  say it  is improper  on a  prima      facie consideration of the evidence offered."      Dealing  with   the  question   whether   the signatures  of  N.  R.  Sarkar  were  forged,  the learned Judge  agreed after  considering the whole evidence that the signatures were not forged. 359      The complaint  of the present complaint Saroj Rajan  Sarkar   specifically  mention   the   City Exchange and that it came into existence later. He also alleges  that this  fact was not known to the previous complaint,  Pramode Ranjan Sarkar, and in support there  is the  affidavit of  Santi  Ranjan Sarkar. Significantly  enough  in  that  affidavit also it is not stated as to when the deponent came to  know  about  this  alleged  new  fact  of  the Telephone City  Exchange. All  that the  affidavit says is  that it  is a  matter of  history and was published in  the Statesman  of December 29, 1948. There is  no evidence  on the record to show as to when the  matter of  "City Exchange"  came  to  be known to  the persons  who were then and two those who are  now prosecuting  the criminal complaints. The document which we have referred to above i.e., the letter  written by the Solicitor dated October 13,  1953  shows  that  Santi  Ranjan  Sarkar  was present as  agent of  Pramode Ranjan Sarkar at the time of  the inspection.  The complaint  filed  by Saroj Ranjan Sarkar states:-           "That   with    great   difficulty   the      documents   in   question   were   inspected,      certified  true   copies   of   the   alleged      resolutions  of   the  Board   meetings  were      obtained and  photostatic copies  of material      portions including alleged signatures of late      Sri Sarkar  on the said Deed of Agreement and      on the Deed of Transfer could be obtained, as      will  appear   from  correspondence  in  this

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    respect."      In the  complaint  filed  by  Pramode  Ranjan Sarkar exactly  the  same  language  was  used  in paragraph  10   of  the   previous  complaint.  If certified copies  were obtained by the complainant Pramode Ranjan  Sarkar and inspection was taken by Santi Ranjan  Sarkar for Pramode Ranjan Sarkar and by his Solicitor and the facts are as they are 360 stated above,  it is  difficult to  hold that  the fact in  regard to  the City Exchange was not know to the  complainant in the first complaint and was a  new  fact  which  could  not,  with  reasonable diligence, be adduced by him.      The next question which arises is whether the order of  the previous Chief Presidency Magistrate who  decided   Pramode  Ranjan’s   complaint,  was manifestly absurd  or unjust  and  resulted  in  a manifestly unjust  order. The Special Bench of the High Court has held that it was so because (1) the Magistrate ignored  the evidence of a large number of witnesses  who  were  competent  to  prove  the handwriting and  signature of  the late  Mr. N. R. Sarkar; (2)  he "set  aside"  the  report  of  the enquiring Magistrate,  Mr. A.B.  Syam for  reasons which cannot  be held  to be  proper and  judicial reasons; (3)  He said  in his order that Mr. N. R. Sarkar might himself have ante-dated the documents thus accepting  a possible defence for which there was no  basis before  him; and  (4) he relied upon his own  comparison of  the disputed signatures of Mr. N.  R. Sarkar.  On these  grounds the  Special Bench was  of the opinion that the decision of the first  Magistrate  was  rather  arbitrary  and  so resulted in  manifest miscarriage  of justice. The question is  whether Mr.  N. C.  Chakrabarti,  the previous Presidency  Magistrate  had  applied  his mind to the evidence which was produced before him and keeping in view his functions as a Magistrate, he gave his decision. It is not necessary to refer to the  various findings given by him. Thy are set out and  considered in  the judgment  of Debabrata Mookerjee, J.  and he  (that  learned  Judge)  has commented upon  all the  infirmities in that order which were brought to his notice.      The  previous   Chief  Presidency  Magistrate found that the Deed of Agreement dated January 19, 1948 was not a forged document. He referred 361 to the evidence without analyzing it. He said that the complainant  examined  persons  who  know  the signature of  the late  Nalini Ranjan  Sarkar  and they deposed  as to  the manner  in  which  Nalini Ranjan  Sarkar   used  to  sign.  After  making  a reference to  the gist  of the  evidence submitted before him  and to  the report  of Mr. A. B. Syam, Presidency  Magistrate,   he  (the  learned  Chief Presidency Magistrate) came to the conclusion:           "For the  reasons above, I find that the      evidence on handwriting including the opinion      of the  Handwriting Expert  does not  support      the complainant’s version."      Again in  a later  part of his order he found that the  resolution of  the  Board  of  Directors dated January  16, 1948  also was  not forged  and

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that the  endorsement of the appellant S. M. Basu, was nothing  more or  less then the authentication of the  common seal of the Co., and he, therefore, agreed with  the finding  of Mr.  A.B.  Syam  that there was  no case  against S.  M. Basu, appellant but disagreed  with him  in regard  to  the  other appellant, P. N. Talukdar. When the matter went to the High  Court, Debabrata  Mookerjee,  J.,  first considered as  to when  the  revisional  power  of Court to  interfere should  be exercised.  Then he discussed  the   seven  circumstances  which  were relied upon by the then complainant Promode Ranjan Sarkar in  support of  the allegations of forgery. After dealing  with these various points raised he held:-           "It may  be that  one or  two  items  of      evidence were not specifically referred to in      the Order but that does not necessarily imply      that those items of evidence were not present      to the  mind of  the Magistrate.  After all a      Magistrate is only required to record briefly      his reasons for dismissing 362      a complaint. The Magistrate’s order, I think,      is fairly well."      The learned Judge then discussed the question of delay  and held  that Pramode Ranjan Sarkar had considerably   delayed   the   bringing   of   the complaint. He also held that the Deed of Agreement which was  alleged to be a forgery had not been so proved and  he gave  various reasons,  one of them being  that   at  the  meeting  of  the  Board  of Directors  dated  September  22,  1953,  the  then complainant did  not oppose  the  renewal  on  the ground that  the Agreement  was forged  or did not exist, but  on legal  grounds.  Then  the  learned Judge referred  to the  correspondence  which  had passed between the then complainant Pramode Ranjan Sarkar and the appellant P.N. Talukdar and said:           "It is therefore clear that the evidence      which the  complainant offered  in support of      his case  contained prima  facie on the first      aspect sufficient  materials for  distrusting      the truth  of the  story and I cannot see how      the Magistrate’s  order can  be challenged in      revision on  the  ground  of  impropriety  as      respects the Deed of Agreement. The learned  Judge then  referred to other aspects of the  case i.e.,  the  evidence  of  the  Deputy Controller  of   Stationery,  P.W.   15.  He  also referred  to   finding  of   the  previous   Chief Presidency Magistrate  that it  was  difficult  to believe that  the  complainant  should  have  been unaware of  the resolution of January 16, 1948 and after referring  to all  these  various  questions raised, he dismissed the petition.      Can it  be said  in these  circumstances that there has  been a  manifest error resulting in the passing of  an unjust order ? That in our opinion, has not  been made  out. The  order  of  Debabrata Mookerjee J.,  who reviewed  the findings  of  the previous Chief  Presidency Magistrate,  shows that the criticism that that the learned Magistrate did not 363

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consider the  whole  evidence  is  not  justified. Taking the  evidence into consideration he came to the conclusion that there was no ground to proceed and, therefore,  refused to  issue process. In his opinion the  evidence was not worthy of credit and he was  not satisfied  with the correctness of the complaint and  dismissed it  as he was entitled to do on  those findings.  See Gulab  Khan  v.  Gulam Mohammad Khan  (1) which  was approved  in Vadilal Panchal v  Dattatraya Dulaji  Chadigaonker(2).  In the circumstances  the order  made by the previous Chief Presidency  Magistrate was  not  any  manner manifestly absurd unjust or foolish, nor can it be said that the Magistrate ignored in any principles which were  necessary to  apply under  ss. 202 and 203 of  the Criminal  Procedure Code  nor  is  the order  contrary  to  what  was  said  in  Ramgopal Ganpatrai Ruia  v. State of Bombay (3). That was a case in which the rule in regard to the commitment proceedings  and   the  power  of  the  Committing Magistrate  to   commit  was   discused  and   the expression "sufficient  grounds" in  ss. 209,  210 and 213  of the  Code of  Criminal  Procedure  was interpreted. That  was not a case dealing with the powers of  the Magistrate  under ss.  202 and  203 which  was  specifically  raised  and  decided  in Vadilal Panchal’s  case (3). In Ramgopal Ganpatrai Ruia’s case  (3)  the  following  observations  of Sinha J.,  (as he  then  was)  in  regard  to  the expression "sufficient grounds" are pertinent:      "The   controversy    has    centred    round           interpretation of  the words "sufficient           ground",  occurring   in  the   relevant           sections of  the Code, set out above. In           the earliest  case of  Lachman v.  Juala           (1882) I.L.R  5 All. 161, decided by Mr.           Justice Mahmood  in the  Allahabad  High           Court,  governed   by  s.   195  of  the           Criminal Procedure Code of 364           1872 (Act  No. X  of 1872),  the eminent           judge took  the view that the expression           "sufficient   grounds"    has   to    be           understood in a wide sense including the           power  of   the  magistrate   to   weigh           evidence. In that view of the matter, he           ruled that  if in  the  opinion  of  the           magistrate,  the  evidence  against  the           accused  "cannot   possibly  justify   a           conviction" there  was  nothing  in  the           Code  to  prevent  the  Magistrate  from           discharging the  accused even though the           evidence  consisted   of  statements  of           witnesses.  who   claimed  to   be  eye-           witnesses,  but   whom  the   magistrate           entirely discredited.  He also held that           the High  Court could  interfere only if           it  came  to  the  conclusion  that  the           Magistrate  had   committed  a  material           error in  discharging the accused or had           illegally or  improperly underrated  the           value  of   the   evidence.   Thus,   he           overruled  the   contention  raised   on           behalf  of   the  prosecution  that  the           powers of  the committing Magistrate did

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         not extent  to weighing the evidence and           that the  expression "sufficient ground"           did   not    include   the    power   of           discrediting eye-witnesses.  Though  the           Code of  Criminal Procedure  was several           times substantially  amended  after  the           date of  that decision,  the basic words           "sufficient  grounds"   have   continued           throughout. That  decision was  approved           by a  Division Bench  of the Bombay High           Court In  re Bai Parvati (1910) I.L.R 35           Bom. 163  and the observations aforesaid           in the  Allahabad decision  were held to           be an  accurate statement  of the law as           contained in  s. 201  of the Code, as it           now stands.  The High  Court  of  Bombay           held in  that case  where  the  evidence           tendered for the prosecution is 365           totally unworthy  of credit,  it is  the           duty of  the Magistrate to discharge the           accused. It  also added  that where  the           magistrate entertains  any doubt  as  to           the weight  or quality  of the evidence,           he should  commit the  case to the Court           of Session which is the proper authority           to resolve  that doubt and to assess the           value of that evidence."      Debabrata  Mookerjee   J.,  in  the  revision against the order of the previous Chief Presidency Magistrate accepted the finding of that Magistrate in regard  to the delay. The present complaint out of which  this appeal  has arisen  was filed after the appeal  in this  Court  arising  out  of  this complaint was  withdrawn by Pramode Ranjan Sarkar. Can it  be said  that this  is not an abuse of the process  of   tho  Court-one  brother  who  was  a director  of   the  Company   and  who   would  be interested in  the Managing  Directorship  of  the Company and  the resolutions  passed in  regard to that office, brought a complaint in 1954 which was dismissed both  by the  Magistrate  and  the  High court.  Appeal  against  the  order  of  dismissal brought in  this court  was withdrawn on March 12, 1959. It  was alleged  in his complaint by Pramode Ranjan Sarkar  that  the  present  respondent  was celluding with  appellant, P. N. Talukdar, who had offered his  some kind  of monetary inducement and that fact was deposed to by the present respondent himself as a witness in the previous complaint. He waited all  this time  although he  knew about the forged signatures  of his  late brother on various documents and  after at  least the  lapse of  five years he  brought a  fresh complaint  on the  same facts. Neither he has disclosed as to when he came to know  about the  City Exchange  nor have  Santi Ranjan Sarkar  and Pramode  Ranjan  Sarkar,  which cannot therefore  be said to be a fact which could not with  reasonable diligence  be adduced  at the time of the previous complaint. 366 The argument that this Court gave Special Leave in the case  of Pramode  Ranjan Sarkar  and therefore there  were   points  of  importance  is,  in  the circumstances of this case, a neutral circumstance

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and that  fact cannot be used as a point in favour of the respondent.      In these circumstances, we are of the opinion that the  bringing of  the fresh  complaint  is  a gross abuse of the process of the Court and is not with the  object of  furthering the  interests  of justice.      In regard  to the  power of  reference  to  a larger Bench,  we are in agreement with S. K. Das, J, and  in the  circumstances it is unnecessary to express an  opinion as  to the applicability of s. 196A Criminal  Procedure code to the facts of this case.      For these  reasons we  allow the appeals, set aside the  order of  the High  Court  and  of  the learned Chief  Presidency Magistrate  and  dismiss the complaint.      BY COURT:  In accordance with the judgment of the majority, the appeal is allowed.                                    Appeal allowed.