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SUPREME COURT OF INDIA
21st December, 1961
S.K. DAS, J.L. KAPUR AND M. HIDAYATULLAH, JJ.
1. Pramatha Nath Talukdar (In Cr. A. No. 75 of 61) and
2. Surendra Mohan Basu (In Cr. A. No. 77 of 61), Appellants
Versus
Saroj Ranjan Sarkar (in both appeals), Respondent.
Criminal Appeals Nos. 75 and 77 of 196l.
Advocates appeared
Mr. C. K. Daphtary, Solicitor-General of India (Mr. I. N. Shroff, Advocate, with him), for Appellant (In Cr. A. No. 75 of 61); Mr. Purushottam Trikamdas, Senior Advocate (M/s. Prasunchandra Ghosh, S. C. Mitter and I. N. Shroff Advocates, with him), for Appellant (In Cr. A. No. 77 of 61); Mr. M. C. Setalvad, Attorney-General for India (Mr. Alak Gupta, Advocate and M/s. S. N. Andley, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., with him), for Respondent (In both the Appeals).
[CRIMINAL PROCEDURE CODE, 1898] Ss. 202, 203, 204, 436, 439 - Second complaint on same allegations - When can be entertained - Exceptional circumstances - Manifest error or miscarriage of justice - Fresh evidence - Delay in making complaint - Undue influence - Abuse of process of Court - Power of reference to larger Bench - Applicability of S. 196A to facts of case. [CONSTITUTION OF INDIA, 1950] Art. 134(1)(c) - Certificate under - Refusal of - Appeal against - When maintainable. [EVIDENCE ACT, 1872] S. 57 - Judicial notice - When can be taken. [HIGH COURT RULES, CALCUTTA] Appellate Side Rules, Ch. II, Rr. 1, 5, 9 - Reference to larger Bench - When can be made - Power of Chief Justice to constitute larger Bench - Inherent power of Chief Justice. [INDIAN PENAL CODE, 1860] Ss. 109, 467, 471 - Abetment by conspiracy - When offence complete - Sanction under S. 196A - When necessary - Criminal conspiracy - When agreement amounts to - When offence complete - Distinction between abetment by conspiracy and criminal conspiracy.
Fact of the Case:
The respondent filed a complaint in the court of the Chief Presidency Magistrate, Calcutta, on April 3, 1959, 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.
Finding of the Court:
The Court held 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.
Issues: (1) Whether a second complaint can be entertained on the same facts after a previous complaint had been dismissed? (2) 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? (3) 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?
Ratio Decidendi: (1) 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. (2) The scope and extent of Ss. 202 and 203 were laid down in 1961 (1) SCR 1 at pp. 910. 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. 203 Criminal Procedure Code the judgment which the 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 is mind to the materials and form his judgment whether or 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 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, 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. (3) The Chief Justice, in the exercise of his inherent jurisdiction, can refer a case to a larger bench.
Final Decision: Appeal allowed.
Judgment
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.
2. 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 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 orders sought to be appealed from was not a final order within the meaning of the Article aforesaid.
3. 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 l961 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 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.
4. 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 allegations, dismissed a previous complaint, and if so, in what circumstances should such a second complaint be entertained. The question is one of general importance and has given rise to some divergence of opinion in the High Courts.
5. 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 Sarkar-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, as I 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 954. 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 an September 1, 1955. Promode Ranjan Sarkar applied for special leave from this Court and obtained such leave on February
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