Wednesday, November 23, 2011

Shiv Shankar Singh V/s.State of Bihar & Anr November 22.2011




                 CRIMINAL APPEAL NO.  2160   of 2011

                (Arising out of SLP(Crl.) No. 2768 of 2010)

Shiv Shankar Singh                                                       ...Appellant


State of Bihar & Anr.                                                    ...Respondents

                                 J U D G M E N T

Dr. B.S. Chauhan, J.

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

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

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

taken   by   the   Magistrate   vide   order   dated   2.8.2008   against   the 

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

(hereinafter called `IPC') has been quashed. 

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

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

Shivshankar   Singh   and   his   brother   Kameshwar   Singh   on   6.12.2004 

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

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

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

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

appellant naming Ramakant Singh and Anand Kumar Singh alongwith 

15 other persons under Sections 396/398 IPC. 

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

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

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

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

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

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

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

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

the accused wanted to grab the immovable property.  

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

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

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

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

investigation   in   the   Report   dated   6.12.2004,   the   police   filed   Final 

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

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


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

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

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

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

favour of the accused persons therein. 

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

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

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

took   cognizance   and   issued   summons   to   respondent   Anand   Kumar 

Singh and others vide order dated 2.8.2008.

F.       Being   aggrieved,   the   respondent   Anand   Kumar   Singh   filed 

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

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

second Protest Petition was not maintainable and the appellant ought to 

have pursued the first Protest Petition dated 4.4.2005. 

         Hence, this appeal. 

3.       Shri   Gaurav   Agrawal,   learned   counsel   appearing   for   the 

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

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

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

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


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

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

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

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

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

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

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

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

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

said   case   the   first   Protest   Petition     had   been   entertained   by   the 

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

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

entertaining   of   second   complaint   even   on   the   same   facts   in   certain 

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

set aside. 

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

learned counsel appearing for the respondents have vehemently opposed 

the   appeal     contending   that   the   second   petition   was   not   maintainable 

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

High   Court   has   rightly   observed   that   the   order   of   the   Magistrate 

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

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


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

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

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

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

is liable to be dismissed. 

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

counsel for the parties and perused the record. 

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

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

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

criminal   trial,   proceedings   cannot   be   initiated   against   the   respondent 

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

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

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

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

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

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

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

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

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

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

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


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

on   the   judgment   of   the   Calcutta   High   Court   in    Joy   Krishna 

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

19.3.1976   was   entertained   by   the   Magistrate   issuing   direction   to   the 

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

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

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

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

incident   had   occurred   outside   the   territorial   jurisdiction   of   the   said 

police   station.     The   second   Protest   Petition   filed   by   the   same 

complainant on 23.3.1976 was entertained by the learned Magistrate.  In 

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

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

Protest   Petition   itself   by   the   Magistrate   and   second   Protest   Petition 

could not have been entertained. 

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

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

of this case. 

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

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

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


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

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

complainant and therefore before the  Magistrate drops the proceedings 

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

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

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

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

proceeding   further   and   drops   the     proceedings,   the   informant   would 

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

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

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

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

          Similarly,   in  Pramatha   Nath   Talukdar   v.   Saroj   Ranjan 

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

          "An   order   of   dismissal   under   Section   203   of   the  

          Criminal   Procedure   Code,   is,   however,   no   bar   to   the  

          entertainment of a second complaint on the same facts  

          but   it   will   be   entertained   only   in   exceptional  

          circumstances   e.g.   where   the   previous   order   was  

          passed   on   an   incomplete   record   or   on   a  

          misunderstanding   of   the   nature   of   the   complaint   or  it  

          was manifestly absurd, unjust or foolish or where new  

          facts which could not, with reasonable diligence, have  

          been   brought   on   the   record   in   the   previous  

          proceedings,   have   been   adduced.   It   cannot  be   said   to  

          be   in   the   interest   of   justice   that   after   a   decision   has  

          been   given   against   the   complainant   upon   a   full  

          consideration   of   his   case,   he   or   any   other   person  


         should   be   given   another   opportunity   to   have   his  

         complaint enquired into."

11.             After   considering   the   aforesaid   judgment   along   with   various 

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

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

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

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

         a   previous   complaint   is   dismissed   without   assigning  

         any   reasons,   the   Magistrate   under   Section   204   CrPC  

         may take cognizance of an offence and issue process if  

         there is sufficient ground for proceeding...." 

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

view has been re-iterated by this Court.

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

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

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

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

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

complaint   had   been   dismissed   for   the   failure   of   the   complainant   to 

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

situation second complaint was maintainable.      

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

entertaining of the second  complaint  even on the same  facts provided 

the   earlier   complaint   has   been   decided   on   the   basis   of   insufficient 


material or the order has been passed without understanding the nature 

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

court   or   where   the   complainant   came   to   know   certain   facts   after 

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

favour. However, second complaint would not be maintainable wherein 

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

case of the complainant on merit. 

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

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

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

exceptional circumstances, the second Protest Petition can also similarly 

be   entertained   only   under   exceptional   circumstances.   In   case   the   first 

Protest   Petition   has   been   filed   without   furnishing   the   full 

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

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

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

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

aforesaid settled legal propositions. 

          Order   dated   2.8.2008   passed   by   the   Magistrate   concerned   is 

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

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

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


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

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

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

summoned   and   examined   by   the   learned   Magistrate.   Thus,   the 

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

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

complainant   and   other   witnesses   deposed   in   the   enquiry,   the   learned 

Magistrate passed the following order : 

          "On   the   basis   of   aforesaid   discussion,   I   find   that  

          there   are   materials   available   on   the   record   to  

          proceed   against   the   accused   person.   A   prima-facie  

          case   under   Section   395   IPC   has   been   made   out  

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

          directed   to  issue   summons  on   filing   of  the   requisite.  

          Put   up   the   record   on   13.8.2008   for   filing   of   the  


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

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

second   Protest   Petition   was   not   maintainable   without   considering   the 

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

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

justification made the following remarks: 

          "The Court can only record that the learned Judicial  

          Magistrate   has   not   conducted   himself   in   a   fair  


          because he has intentionally left the impugned order  

          vague   as   to   which   protest   petition   he   was   acting  


          upon,   so   that   advantage   may   accrue   to   Opposite  

          Party No.2."

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

make   such   sweeping   remarks   against   the   Magistrate   and   the   same 

remain   unjustified   and   unwarranted   in   the   facts   and   circumstances   of 

the case.  

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

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

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

Magistrate   on   1.12.2011   and   the   learned   Magistrate   is   requested   to 

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

observation   made   in   this   judgment   shall   not   adversely   prejudice   the 

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

the   said   observations   have   been   made   only   to   decide   the   controversy 

involved herein. 


                                                   (Dr. B.S. CHAUHAN)



                                                   (T.S. THAKUR)

  New Delhi, 

  November 22, 2011



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