Cognizance cannot be taken on a second complaint based on similar facts after a negative report on the first complaint, as it leads to jurisdictional errors and manifest injustice.

ORDER :

Sudesh Bansal, J. - Petitioner filed instant criminal misc. petition, assailing the order dated 12.01.2010 passed in revision petition No.144/2009 by the Additional Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur, dismissing his revision petition and affirming the order dated 01.12.2005 in case No. 5337/2007 passed by the Judicial Magistrate No.11, Jaipur (City), Smt. Chanda Devi v. Nirmal Singh whereby cognizance for offence under Section 447 IPC has been taken against the petitioner.

2. Learned counsel for the petitioner has pointed out that the cognizance has been taken on the criminal complaint filed by non-petitioner No.2 Smt. Chanda Devi on 05.10.2005. Whereas prior to that non-petitioner No.2 filed one more complaint, which was sent for investigation to Police under Section 156(3) Cr.P.C. and after investigation, Police submitted negative final report, which was accepted by the Judicial Magistrate. Hence, on the similar set of facts, the cognizance taken in the second complaint, stands illegal and contrary to the mandate of law.

In Addition, learned counsel for the petitioner has pointed out that the complainant Smt. Chanda Devi herself did not appear to make her statements under Section 200 Cr.P.C., and Without recording statements of the complainant under Section 200 Cr.P.C., the Judicial Magistrate should not have taken the cognizance, since in view of mandate of Section 200 Cr.P.C, statements of Power of Attorney-Holder of the complainant cannot be considered. According to Section 200 Cr.P.C., it is essential for the complainant herself to appear to record her statements. Thus, on this count also, the cognizance order suffers from patent defect.

Lastly, learned counsel for the petitioner has urged that the complainant filed the instant complaint with the allegation that the petitioner-accused has entered into the plot in question, of her ownership and possession, then raised constructions of a 'Gumti' and dispossessed her. He submits that in fact, the plot was already in possession of accused-petitioner. In this regard, a civil suit was also instituted, which has been decided in favour of the petitioner vide judgment dated 08.06.2012, whereagainst the non-petitioner No.2 complainant has preferred the first appeal being S.B. Civil First Appeal No.399/2012 before the High Court, which is pending.

Hence, his submissions is that in view of afore-referred contentions, the order of cognizance is wholly, against mandate of law and revisional Court too could not advert to such illegalities in the cognizance order and did not exercise its revisional powers. The judgment of Hon'ble Supreme Court, on this point is well clear as expounded in case of Tarak Dash Mukharjee v. State of UP:Criminal Appeal No.1400/2022, decided on 23.08.2022, [2022 Live Law (SC) 331], re-iterating the judicial precedent settled in case of T. T. Antony v. State Of Kerala & Ors [(2001) 6 SCC 181].

3. Learned counsel for the complainant as well as learned Public Prosecutor opposed the petition.

4. Having heard learned counsel for both parties and from perusal of record, this Court finds that points raised by counsel for the petitioner are material, which emanates from the record. In respect of filing the previous complaint by complainant, averments are mentioned in the present complaint itself in para No.5. The previous complaint is based on similar set of facts, which is an undisputed fact. In the previous complaint, FIR No.523/2005 was registered at Police Station Vaishali Nagar, Jaipur and after investigation, final report has been submitted by the Police, which has also been accepted by the Judicial Magistrate vide order dated 08.05.2006. If such facts would have been considered by the concerned Judicial Magistrate, there could not be any occasion to take cognizance for the similar nature of offences on the second complaint. Second criminal complaint, on the similar set of facts and substratum on which first complaint was filed by same compla