Shiv Shankar Singh Vs.
State of Bihar & ANR.
J U D G M E N T
Dr. B.S. Chauhan, J.
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.
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
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.
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.
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.
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
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).
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.
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.
facts of the present case are completely distinguishable. Therefore, the ratio
of the said judgment has no application in the facts of this case.
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 6the 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
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.
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
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."
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.
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.
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 8material 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
complaint would not be maintainable wherein the earlier complaint has been
disposed of on full consideration of the case of the complainant on merit.
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.
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
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
manner 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
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.
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)