Poonam Chand Jain & Anr Vs.
Fazru  Insc 645 (15 October 2004)
Arijit Pasayat & C.K. Thakker
Arijit Pasayat, J An interesting point is raised in this appeal as to the
effect of dismissal of a complaint filed under Section 200 of the Code of
Criminal Procedure, 1973 (in short the 'Code') and whether second complaint can
Brief reference to the factual aspects as contended by the appellant would
Respondent-Fazru (hereinafter referred to as the 'complainant') filed a
complaint no.152 on 10.7.1992 which was dismissed by order dated 13.1.1994 by
the Judicial Magistrate, 1st Class, Nuh, Haryana. On 12.2.1996 the complainant
filed a revision before the Punjab and Haryana High Court which was numbered as
Criminal Revision No.43 of 1995. The said revision petition was dismissed by
order dated 12.2.1996. Prior to the institution of a complaint 4 suits had been
filed by the appellants' companies and other appellants in 1989 which were
decreed by order dated 24.10.1997. In all these cases complainant- Fazru was
defendant no.1. In 1992 the complainant filed a Civil Suit No. 90 of 1992 in
the Court of Civil Judge, Junior Division, Nuh. The same was dismissed for
default on 7.10.1997. Complainant filed the complaint which forms subject
matter of present appeal on 25.11.1997.
According to the appellants process was directed to be issued by the learned
Magistrate on 9.1.1999. Such action was assailed by filing a revision. By
judgment dated 9.7.1999, learned Additional Sessions Judge, Gurgaon, allowed the
revision and dismissed the complaint. It was, inter alia, held that protection
under Section 300 of the Code was not available to the complainant. Aggrieved
by said order, the complainant filed a revision petition no. 552 of 2000 before
the High Court. By the impugned order the High Court allowed the revision.
Learned Judge held that if the present appellants had any grievance they
could seek review of the summoning order with a view to get discharged in view
of the provision of Section 245 of the Code.
In support of the appeal, Mr. Altaf Ahmad, learned senior counsel, submitted
that the second complaint was nothing but a repetition of the averments of the
first complaint and was in essence a fresh attempt to re-open the matters which
have attained finality. The order of learned Additional Sessions Judge was
justified and the High Court should not have interfered with it. It was pointed
out with reference to various averments in the first complaint filed on
10.7.1992 and the second one filed on 25.11.1997 that both are founded on the
same allegations. The averments were merely repeated and, therefore, no case
for entertaining the second complaint was made out.
That being so, the issuance of process was illegal and the learned
Additional Sessions Judge had rightly interfered with it. The High Court was
not justified in saying that present appellant should seek discharge in terms
of Section 245 of the Code. It was submitted that though the second complaint
can be entertained, the same has to be on establishing exceptional
circumstances and not as a matter of routine.
In response, learned counsel for the respondent submitted that it is not
correct to contend as done by the appellants that the averments were mere
repetitions. Different persons were arrayed as accused in the complaint and the
alleged offences were different.
A birds' eye view of some of the decisions throwing light on the controversy
needs to be taken.
In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876), Kapur,
J. speaking for himself and Hidayatullah, J. as he then was, observed: (at
p.899, para 48) "Therefore, if he has not misdirected himself as to the
scope of the enquiry made under S. 20, Criminal Procedure Code, and has
judicially applied his mind to the material before him and then proceeds to
make his order it cannot be said that he has acted erroneously. An order of
dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the
entertainment of a second complaint on the same facts but it will be entertained
only in exceptional circumstances, i.e., where the previous order was passed on
an incomplete record or on a misunderstanding of the nature of the complaint or
it was manifestly absurd, unjust or foolish or where new facts which could not,
with reasonable diligence, have been brought on the record in the previous
proceedings have been adduced. It cannot be said to be in the interests of
justice that after a decision has been given against the complainant upon a
full consideration of his case, he or any other person should be given another
opportunity to have his complaint enquired into Allah Ditta v. Karam Baksh (AIR
1930 Lahore 879); Ram Narain Chaubey v.
Panachand Jain ((AIR 1949 Pat 256); Hansabai Sayaji Payagude v. Ananda
Ganuji Payagude (AIR 1949 Bom 384); Doraisami Aiyar v. Subramania Aiya (AIR
1918 Mad 484). In regard to the adducing of new facts for the bringing of a
fresh complaint the Special Bench in the judgment under appeal did not accept
the view of the Bombay High Court or the Patna High Court in cases above-quoted
and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobind Dass
(ILR (1901) 28 Cal 211), affirmed by a Full Bench in Dwarka Nath Mondul v. Beni
Madhab Banerjee (ILR (1901) 28 Cal 652). It held, therefore, that a fresh complaint
can be entertained where there is manifest error, or manifest miscarriage of
justice in the previous order or when fresh evidence is forthcoming." S.K.
Das, J. delivering the minority judgment also observed: (AIR p.887, para 21)
"The question was then considered by a Full Bench of the Calcutta High
Court in Dwarka Nath Mondul v. Beni Madhab Banerjee (ILR (1901) 28 Cal 652) and
it was held by the Full Bench (Ghose, J. dissenting) that a Presidency
Magistrate was competent to rehear a warrant case triable under Ch. XXI of the
Code of Criminal Procedure in which he had earlier discharged the accused
person. Nilratan Sen's case (ILR (1896) 23 Cal 983) and Kamal Chandra Pal's
case (ILR (1897) 24 Cal 286) were referred to in the arguments as summarized in
the report, but the view expressed therein was not accepted. Dealing with the
question Prinsep, J. said:
"There is no bar to further proceedings under the law, and therefore, a
Magistrate to whom a complaint has been made under such circumstances, is bound
to proceed in the manner set out in S.
200, that is, to examine the complaint, and, unless he has reason to
distrust the truth of the complaint, or for some other reason expressly
recognized by law, such as, if he finds that no offence had been committed, he
is bound to take cognizance of the offence on a complaint, and unless he has
good reason to doubt the truth of the complaint, he is bound to do justice to
the complainant, to summon his witnesses and to hear them in the presence of
the accused." The same view was expressed by the Madras High Court Malayil
Kottayil Koyassan Kutty, In re (AIR 1918 Mad 494) and it was observed that
there was nothing in law against the entertainment of a second complaint on the
same facts on which a person had already been discharged, inasmuch as a
discharge was not equivalent to an acquittal. This view was reiterated in
Kumariah Naicker v. Chinna Naicker (AIR 1946 Mad 167), where it was held that
the fact that a previous complaint had been dismissed under S. 203 of the Code
of Criminal Procedure was no bar to the entertainment of a second complaint. In
Hansabai Sayaji Payagde v.
Ananda Ganuji Payagude (AIR 1949 Bom 384) the question was examined with
reference to a large number of earlier decisions of several High Courts on the
subject and it was held that there was nothing in law against the entertainment
of a second complaint on the same facts. The same view was also expressed in
Ram Narain Chaubey v. Panachand Jain (AIR 1949 Pat 256); Rama Nand v. Sheri
(AIR 1934 All 87) and Allah Ditta v. Karam Bakhsh (AIR 1930 Lah 879) , in all
these decisions it was recognized further that though there was nothing in law
to bar the entertainment of a second complaint on the same facts, exceptional
circumstances must exist for entertainment of a second complaint when on the
same allegations a previous complaint had been dismissed ......I accept the
view expressed by the High Courts that there is nothing in law which prohibits
the entertainment of a second complaint on the same allegations when a previous
complaint had been dismissed under Section 203 of the Code of Criminal
Procedure. I also accept the view that as a rule of necessary caution and of
proper exercise of the discretion given to a Magistrate under S. 204(1) of the
Code of Criminal Procedure, exceptional circumstances must exist for the
entertainment of a second complaint on the same allegations; in other words,
there must be good reasons why the Magistrate thinks that there is
"sufficient ground for proceeding" with the second complaint, when a
previous complaint on the same allegations was dismissed under Section 203 of
the Code of Criminal Procedure." The learned Judge posed the question as
to what would be those exceptional circumstances. Noticing the decisions in Queen
Dolegobind Dass, ((1901) ILR 28 Cal 211), In re : Koyassan Kutty, (AIR 1918
Mad 494), Kumariah v. Chinna Naicker, (AIR 1946 Mad 167), and several other
decisions, the learned Judge came to the conclusion :
"It will be noticed that in the test thus laid down the exceptional
circumstances are brought under three categories; (1) manifest error, (2)
manifest miscarriage of justice, and (3) new facts which the complainant had no
knowledge of or could not with reasonable diligence have brought forward in the
previous proceedings. Any exceptional circumstances coming within any one or
more of the aforesaid three categories would fulfil the test. In Ram Narain v.
Panachand Jain (AIR 1949 Pat 256) it was observed that an exhaustive list of
the exceptional circumstances could not be given though some of the categories
were mentioned. One new category mentioned was where the previous order of
dismissal was passed on an incomplete record or a misunderstanding of the
nature of the complaint. This new category would perhaps fall within the
category of manifest error or miscarriage of justice.
It appears to me that the test laid down in the earliest of the aforesaid
decisions. Queen Empress v.
Dolegobinda Dass is really wide enough to cover the other categories
mentioned in the later decisions.
Whenever a Magistrate is satisfied that the previous order of dismissal was
due to a manifest error or has resulted in a miscarriage of justice, he can
entertain a second complaint on the same allegations even though an earlier
complaint was dismissed under S. 203 of the Code of Criminal Procedure
..." Yet again in Bindeshwari Prasad Singh v. Kali Singh (1977 SCC (Crl.)
33) this Court followed Pramatha Nath Talukdar's case (supra) holding :-
"..... it is now well-settled that a second complaint can lie only on
fresh facts or even on the previous facts only if a special case is made out
..." As was observed in Mahesh Chand v. B. Janardhan Reddy and Anr.
(2003 (1) SCC 734), there is no statutory bar in filing a second complaint
on the same facts. In a case where a previous complaint is dismissed without
assigning any reason, the Magistrate under Section 204 Cr.P.C. may take
cognizance of an offence and issue process if there is sufficient ground for
proceeding. But the second complaint on the same facts could be entertained
only in exceptional circumstances, namely, where the previous order was passed
on an incomplete record or on a misunderstanding of the nature of complaint or
it was manifestly absurd, unjust or where new facts which could not, with
reasonable diligence, have been brought on record in the previous proceedings
have been adduced. The second complaint could be dismissed after a decision has
been given against the complainant in previous matter upon a full consideration
of his case. Further second complaint on the same facts would be entertained
only in exceptional circumstances, namely, where previous order was passed on
an incomplete record or on misunderstanding of the complaint or it was
manifestly absurd or unjust.
At this juncture, it will be also necessary to take note of what this Court
has said in Subramanium Sethuraman v. State of Maharashtra and Anr. (2004 (6)
Supreme 662). It was laid down in the said decision that it is impermissible
for the Magistrate to re-consider his decision to issue process in the absence
of any specific provision to recall such order.
In Adalat Prasad v. Rooplal Jindal and Ors. (2004 (7) SCALE 137), this Court
considered the view of the Court in K.M. Mathew v. State of Kerala and Anr.
(1992 (1) SCC 217) and held that the issuance of process under Section 204 is a
preliminary step in the stage of trial contemplated in Chapter XX of the Code.
Such an order made at a preliminary stage being an interlocutory order, same
cannot be reviewed or reconsidered by the Magistrate, there being no provision
under the Code for review of an order by the same Court. Hence, it is
impermissible for the Magistrate to reconsider his decision to issue process in
the absence of any specific provision to recall such order.
In that line of reasoning this Court in Adalat Prasad's case (supra) held:
"Therefore, we are of opinion that the view of this Court in Mathew's
case (supra) that no specific provision is required for recalling and issuance
order amounting to one without jurisdiction, does not laid down the correct
law." From the above, it is clear that the larger Bench of this Court in
Adalat Prasad's case (supra) did not accept the correctness of the law laid
down by this Court in K.M. Mathew's case (supra).
Learned counsel for the respondent submitted that the order to issue process
is an interlocutory order, and therefore revision before the Additional
Sessions Judge was not maintainable. Learned counsel for the appellants with
reference to certain observations in Rajendra Kumar Sitaram Pande and Ors. v.
Uttam and Anr. (1993 (3) SCC 134) and K.K. Patel and Anr. v. State of Gujarat
and Anr. (2000 (6) SCC 195) submitted that this Court has held that issuance of
process or charges is not an interlocutory order. In both these cases reference
was made to V.C. Shukla v. State through C.B.I. (1980 Supp. SCC 92) to hold
that framing of charge is not an interlocutory order. The decision in V.C.
Shukla's case (supra) was rendered in the background of the special statute
applicable and it is clearly stated in para 47 to be so. In any event, that
question is academic as the High Court did not interfere with the order passed
by the Additional Sessions Judge on the ground that the revision was not
maintainable in view of the prescription in Section 397(2) of the Code.
Undisputedly, in a given case Section 482 of the Code can be pressed into
service. It was held by this Court in Pramatha Nath's case (supra). Further, in
Subramanium's case (supra) as noted above, it was observed that issuance of
process is a preliminary step in the stage of trial. In V.C. Shukla's case
itself the distinction between cases covered by the Code and the special
Statute governing that case, as noted above, has been clearly indicated. It was
inter alia, observed as follows:
"To sum up, the essential attribute of an interlocutory order is that
it merely decides some point or matter essential to the progress of the suit or
collateral to the issues sought but not a final decision or judgment on the
matter in issue. An intermediate order is one which is made between the
commencement of an action and the entry of the judgment. Untwalia, J in the
case of Madhu Limaye v.
State of Maharashtra (1978(1) SCR 749) clearly meant to convey that an order
framing charge is not an interlocutory order but is an intermediate order as
defined in the passage, extracted above, in Corpus Juris Secundum, Vol.60. We
find ourselves in complete agreement with the observations made in Corpus Juris
Secundum. It is obvious that an order framing of the charge being an
intermediate order falls squarely within the ordinary and natural meaning of
the term 'interlocutory order' as used in Section 11(1) of the Act. Wharton's
Law Lexicon (14th Edn. P.529) defines interlocutory order thus:
"an interlocutory order or judgment is one made or given during the
progress of an action, but which does not finally dispose of the rights of the
parties." Thus, summing up the natural and logical meaning of an
interlocutory order, the conclusion is inescapable that an order which does not
terminate the proceedings or finally decides the rights of the parties is only
an interlocutory order. In other words, in ordinary sense of the term, an
interlocutory order is one which only decides a particular aspect or a
particular issue or a particular matter in a proceeding, suit or trial but
which does not however conclude the trial at all.
This would be the result if the term interlocutory order is interpreted in
its natural and logical sense without having resort to Criminal Procedure Code,
or any other statute. That is to say, if we construe interlocutory order in
ordinary parlance it would indicate the attributes, mentioned above, and this
is what the term interlocutory order means when used in Section 11(1) of the
This case was following in the case of Mohd.
Amin Bros. v. Dominion of India (AIR 1950 SC 139) where it was held that so
far as this Court is concerned the principles laid down in S.Kuppuswami Rao v.
King (AIR 1949 FC 1) settled the law. In this connection, in the aforesaid
case, Mukherjea, J., speaking for the Court observed as follows:
"The expression 'final order' has been used in contradistinction to
what is known as 'interlocutory order' and the essential test to distinguish the
one from the other has been discussed and formulated in several cases decided
by the Judicial Committee. All the relevant authorities bearing on the question
have been reviewed by this Court in their recent pronouncement in S.
Kuppuswami's case (supra) and the law on point, so far as this Court is
concerned, seems to be well settled.
In full agreement with the decisions of the Judicial Committee in Ramchand
Goverdhandas Vishandas (1920 (47) IA 124) and Abdul Rahman v. D.K. Cassim
and Sons (AIR 1933 PC 58) and the authorities of the English Courts upon which
these pronouncements were based, it has been held by this Court that the test
for determining the finality of an order is, whether the judgment or order
finally disposed of the rights of the parties.
Thus, the Federal Court in its decision seems to have accepted two
(1) that a final order has to be interpreted in contradistinction to an
interlocutory order; and (2) that the test for determining the finality of an
order is whether the judgment or order finally disposed of the rights of the
Thus, summing up the entire position the inescapable conclusion that we
reach is that giving the expression "interlocutory order" its natural
meaning according to the tests laid down, as discussed above, particularly in
Kuppuswami's case (supra) and applying the non obstante clause, we are
satisfied that so far as the expression 'interlocutory order' appearing in
Section 11(1) of the Act is concerned, it has been used in the natural sense
and not in a special or a wider sense as used by the Code in Section 397(2).
The view taken by us appears to be in complete consonance with the avowed
object of the Act to provide for a most expeditious trial and quick dispatch of
the case tried by the Special Court, which appears to be the paramount
intention in passing the Act." As the High Court has not considered the
legality of the order directing issuance of process keeping in view the law
laid down by this Court, we feel it would be proper to remit the matter to the
High Court to record positive findings on the relevant issues.
The appeal is disposed of accordingly.