ION Criminal Appeals Nos 75 and 77 of 1961
Appeal by special leave from the judgment and order dated December 22 23 1960 and from the order dated March 17 1961 of the Calcutta High Court in Cr
Revision Nos 1019 and 681 of 1959
CK Daphtary Solicitor General of India and I N Shroff for the appellant in Cr A No 7561
Purushottam Trikamdas Prasunchandra Ghosh SC Mitter and I N Shroff for the appellant in Cr A No 77 of 1961
M C Setalvad Attorney General of India Alak Gupta SN Andley Rameshwar Nath and PL Vohra for the respondents
December 21
The judgment was delivered by SK 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
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 2223 1960 and the other dated March 17 1961
By the first order a Special 301 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 sections 467 and 471 read with section 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 article 1341c 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 order sought to be appealed from was not a final order within the meaning of the Article aforesaid
In pursuance of the special leave granted by this Court four appeals were filed two against the order dated December 2223 1960 and the other two against the order dated March 17 1961
The two appeals numbered 76 and 78 of 1961 from the order dated March 17 1961 were withdrawn on the ground that special leave having been granted against the order of the Special Bench dated December 2223 1960 the appellants did not wish to press the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 2223 1960
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 allegation dismissed a previous complaint and if so in what circumstances should such a second complaint be entertained
The question is one of 302 general importance and has given rise to some divergence of opinion in the High Courts
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 Sakar 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 a 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 section 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 1954
This application in revision was dismissed on July 8 1955 by Debabrata Mookerjee J Promode Ranjan Sarkar then applied for a certificate under article 1341c of the Constitution but such a certificate was refused by a Bench of the Calcutta High Court on September 1 1955
Promode Ranjan Sarkar applied for special leave from this Court and obtained such leave on February 13 1956
An appeal was filed in pursuance of that special leave but ultimately Promode Ranjan Sarkar withdrew his appeal by filing a petition on February 3 1959
In that petition he stated that at the intervention of Common friends and well wishers of the parties he had settled his disputes with the respondents therein and did not want to proceed with the appeal 303 The appeal was accordingly withdrawn on March 12 1959
Then within about 22 days of that order Saroj Ranjan Sarkar filed the complaint which has given rise to the present proceedings
For convenience and brevity I shall refer to Promode Ranjan Sarkar s complaint as the first complaint and Saroj Ranjan Sarkar s as the second complaint
It is necessary here to give a little more of the background history of the second complaint
As stated earlier the late Nalini Ranjan Sarkar was a well known person in Bengal
He was the Governing or Managing Director of N R Sarkar  Co Ltd which managed several public limited companies such as Hindustan Development Corporation Ltd Hindustan Heavy Chemicals Ltd and Hindusthan Pilkington Glass Works Ltd He was also closely connected with the Hindusthan Co operative Insurance Society Ltd of which he held a large number of shares
On January 4 1948 he obtained leave of absence from the Directors of N R Sarkar  Co Ltd for a period of one year with a view to joining the Ministry in West Bengal and he assumed office as Finance Minister of the West Bengal Government on January 23 1948
Later the leave granted to him for one year was extended
He owned 4649 shares of N R Sarkar  Co Ltd Pramatha Nath Talukdar who was a paid employee of the Hindusthan Co operative Insurance Society Ltd up to the end of July 1953 was also a Director of N R Sarkar  Co Ltd He held 299 shares of the said company
Promode Rajan Sarkar held 50 shares
Santi Ranjan Sarkar son of a deceased brother of Nalini Ranjan Sarkar held one share
Thus it would appear that Nalini Ranjan Sarkar was the owner of the largest number of shares of N R Sarkar  Co Ltd and for all practical purposes he controlled the affairs of that company
On July 31 1951 Nalini Ranjan Sarkar executed a deed of trust in respect of 3649 shares out of the 304 shares held by him in N R Sarkar  Co Ltd By the said trust deed he appointed Promode Ranjan Sarkar Pramatha Nath Talukdar and Narendra Nath Law as the trustees but the beneficiaries under the trust deed were his four brothers namely Promode Ranjan Sarkar Pabitra Ranjan Sarkar Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar as also Santi Ranjan Sarkar the son of a deceased brother
It was alleged that the balance of 1000 shares held by Nalini Ranjan Sarkar was kept in custody with Pramatha Nath Talukdar and according to the case of the complainant these shares were kept in deposit with Pramatha Nath Talukdar for the benefit of the complainant and this brothers
Nalini Ranjan Sarkar died on January 25 1953
It was alleged that a few days after the funeral ceremony had been performed Saurindra Mohan Basu casually informed Promode Ranjan Sarkar that his brother Nalini Ranjan Sarkar had executed two documents to wit an unregistered deed of agreement dated January 19 1948 by which Pramatha Nath Talukdar was appointed Managing Director of NR Sarkar  Co Ltd and a deed of transfer of 1000 shares dated February 5 1951 in favour of Pramatha Nath Talukdar
Promode Ranjan Sarkar and his brothers did not give credence to the information conveyed and wanted to see the documents
It was alleged that this request was not complied with
On July 31 1953 ie about six months after the death of Nalini Ranjan Sarkar Pramatha Nath Talukdar resigned from his salaried post under the Hindusthan Co operative Insurance Society Ltd and sought to assume control of N R Sarkar  Co Ltd as its Managing Director
This led to some trouble between Promode Ranjan Sarkar and the appellants and also to some correspondence between Promode Ranjan Sarkar on one side and N R Sarkar  Co Ltd on the other details whereof are not necessary for our purpose
305 On September 22 1953 a meeting of the Board of Directors of NR Sarkar  Co Ltd was held
It was alleged that the meeting was held irregularly without any agenda and a resolution was adopted despite Promode Ranjan Sarkar s protest by which the appointment of Pramatha Nath Talukdar as Managing Director of N R Sarkar  Co Ltd was renewed for seven years
In September 1953 Promode Ranjan Sarkar formally wrote to NR Sarkar  Co Ltd for inspection of the alleged deeds of agreement and transfer
On October 1 1953 an inspection was taken and on October 13 1953 Promode Ranjan Sarkar was allowed to take photographs of the relevant portions of the documents
On this occasion Promode Ranjan Sarkar also inspected the minutes of the proceedings of N R Sarkar  Co Ltd and it was alleged that the proceedings dated January 16 1948 purporting to bear the signature of Nalini Ranjan Sarkar were forged
The main allegations in the first and second complaints related to three documents and were to the effect that in order to assume complete control over N R Sarkar  Co Ltd and the concerns under its managing agency the accused persons entered into a criminal conspiracy with one another and others unknown to dishonestly and fraudulently forge a deed of agreement a deed of transfer and make a false document to wit minute book of N R Sarkar  Co Ltd and in pursuance thereof dishonestly and fraudulently forged and or caused to be forged and used as genuine the said documents
It will be noticed that three documents were stated to have been forged and they were 1 An unregistered deed of agreement purporting to have been executed by the late Nalini Ranjan Sarkar as Governing Director of N R Sarkar  Co Ltd on January 19 1948 appointing Pramatha Nath Talukdar as the Managing Director of N R Sarkar  Co Ltd on a remuneration of Rs 1500 100 2000 per month
This document bore 306 the signature of Saurindra Mohan Basu as a witness attesting the signature of Nalini Ranjan Sarkar which signature was stated to have been forged
2 A transfer deed in respect of 1000 shares of N R Sarkar  Co Ltd which were said to have been entrusted to Pramatha Nath Talukdar transfering them to the latter for and alleged consideration of rupees one lac purporting to have been executed by the late Nalini Ranjan Sarkar on February 5 1951 with Saurindra Mohan Basu as the attesting witness both for the transferor and the transferee
3 Minutes of the proceedings of the Board meeting of NR Sarkar  Co Ltd dated January 16 1948 purporting to bear the signature of the late Nalini Ranjan Sarkar and containing a resolution to the effect that the Governing Director approved of a draft agreement of appointment between the Company and Pramatha Nath Talukdar for appointing the latter as Managing Director of the Company and that the Board of Directors approved of the said draft agreement
Of the aforesaid three documents the one relating to the alleged transfer of 1000 shares referred to as 2 above is the subject of a separate suit stated to be now pending in the Calcutta High Court
That document is not therefore directly the subject matter of the second complaint
As to the unregistered deed of agreement referred to as 1 above it may be stated that the original document could not be later found and on behalf of the appellants and other accused persons it was stated that the document was not in their possession or control
As stated earlier Promode Ranjan Sarkar had obtained a photostatic copy of the relevant portions of the document
As to this document the main allegation of the complainant was that it was engrossed on a rupee stamp paper which had been issued on renewal in the name of PD Himatsinghka  Co a firm of solicitors in Calcutta 307 and evidence was led at the enquiry into the first complaint that the paper was stolen from that firm and furthermore that the signature on the document purporting to be that of Nalini Ranjan Sarkar was not his signature at all
With regard to the minutes of the proceedings dated January 16 1948 the allegation was that the minutes were typed on a sheet of paper bearing the letter head NR Sarkar  Co Ltd with telephone number City 6091 printed thereon but the City Exchange did not come into existence until December 1948 and the telephone connection relating to number City 6091 was obtained for the first time by the Hindusthan Co operative Insurance Society Ltd on or about March 18 1949 and therefore the paper with the letter head N R Sarkar  Co Ltd with telephone number City 6091 printed thereon could not have been in existence on the alleged date of the proceeding of the Board of Directors namely January 16 1948
In the second complaint certain other circumstances were also alleged in support of the allegation that the unregistered deed of agreement dated January 19 1948 and the minutes of the proceedings dated January 16 1948 were forged
It is however unnecessary to refer to those circumstances in detail here
The learned Chief Presidency Magistrate Shri Bijayesh Mukherjee who dealt with the second complaint considered all the relevant materials and came to the following conclusions 1 there was no delay in making the second complaint if one had regard to the circumstances which led to the first complaint and the withdrawal of the appeal in the Supreme Court on March 12 1959 arising out of the order made on the first complaint 2 the dismissal of the first complaint and the application in revision arising therefrom by Debabrata Mookerjee J did not as a matter of law 308 operate as a bar to the entertainment of the second complaint
3 the second complaint was not an attempt at blackmail and 4 the relevant materials in the record showed prima facie that the minutes of the proceedings dated January 16 1948 were forged and so also the unregistered deed of agreement dated January 19 1948
The learned Chief Presidency Magistrate then said Prima facie I am satisfied about the truth of the allegations the complaint makes
That apart the complaint is for an offence triable by a Court of sessions
And the materials I see before me are such as in my opinion may lead a reasonable body of men to believe the truth thereof
Judged so there is in my opinion sufficient ground for proceeding within the meaning of section 204 of the procedure Code
On the question as to which of the four accused persons against whom process should issue the learned Chief Presidency Magistrate came to the conclusion that there was a prima facie case against two of the accused persons only namely Pramatha Nath Talukdar and Saurindra Mohan Basu
Saurindra Mohan Basu it may be stated here was a solicitor of NR Sarkar  Co Ltd and had attested the signature of Nalini Ranjan Sarkar on the unregistered deed of agreement
The learned Chief Presidency Magistrate held that there was no sufficient ground for proceedings against the other two accused persons namely Narendra Nath Law and Amiya Chakravarty
Against the aforesaid order of the Chief Presidency Magistrate two applications in revision were filed by the appellants herein
These applications 309 in revision were first heard by a division Bench of two Judges of the Calcutta High Court P B Mukherjee and H K Bose JJ
In view of the importance of the questions raised in the two applications in revision and some earlier decisions of the Calcutta High Court bearing on those questions to which I shall presently refer PB Mukherjee J came to the conclusion that the applications should be referred to a larger Bench to be constituted by the Chief Justice under the rules of the Court
HK Bose
J as he then was was inclined to take the view that the applications in revision must fail but in deference to the views expressed by PB Mukherjee J agreed that the applications should be referred to the Chief Justice for constituting a larger Bench
The matter was then referred to the learned Chief Justice who constituted a Special Bench of three Judges to hear the two applications in revision
This Special Bench heard the two applications in revision and dismissed them by its order dated December 2223 1960
Three questions were agitated before the Special Bench
The first was whether the Special Bench was lawfully in seizin of the case and was competent to deal with the applications in revision
The second was whether the learned Chief Presidency Magistrate had jurisdiction to take cognizance of the offences alleged in the absence of a sanction under section 196A of the Code of Criminal Procedure
The third and the principal question was whether it was open to the learned Chief Presidency Magistrate to entertain a second complaint on the same allegations when his predecessor had dismissed the first complaint and if it was open to him to entertain the second complaint should he have entertained it in the circumstances of the present case  The Special Bench unanimously decided these three questions against the appellants and further came to the conclusion that there was no undue delay in making the second 310 complaint neither was it frivolous nor made in bad faith
It further expressed the view that it saw no reasons to differ from the finding of the learned Chief Presidency Magistrate that there was a prima facie case against the two appellants
Now as to the first question
Chapter II of Rules of the High Court at Calcutta Appellate Side deals with the constitution and powers of the Benches of the Court
Rule 1 of the said chapter says in effect that a Division Bench for the hearing of appeals from decrees or orders of the Subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit there is a proviso proviso ii to the rule which says that on the requisition of any Division Bench or whenever he thinks fit the Chief Justice may appoint a special Division Bench to consist of three or more Judges for the hearing of any particular appeal or any particular question of law arising in an appeal or of the any other matter
It is clear that the rule and the proviso deal with the hearing of appeals from decrees or orders of the Subordinate Civil Courts in other words they deal with civil matters
Rule 9 of the same chapter deals with criminal matter and sub r
1 of the said rule says that a Division Bench for the hearing of cases on appeal reference or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges
There is no proviso to this rule similar to the proviso to r 1 referred to earlier and the argument is that in the absence of such a proviso it was not open to the Division Bench consisting of Mukherjee and Bose JJ
to refer the case back to the Chief Justice for the constitution of a larger Bench though it was open to the Chief Justice to constitute originally a Division Bench of three Judges to hear the case and if the Judges were equally divided in opinion section 429 of the Code of Criminal procedure would apply and the case had to be laid before another Judge and judgment given according to the 311 opinion of the third Judge
I am unable to accept this argument as correct
It is clear from the rules in Chapter II that the constitution of Benches is a matter for the Chief Justice and r 13 in Chapter II says that a Full Bench appointed for any of the purposes mentioned in Chapter VII rr 1 to 5 shall consist of five Judges or three Judges as the Chief Justice may appoint
Now r 1 in Ch
VII says inter alia that whenever one Division Bench shall differ from any other Division Bench upon a point of law or usage having the force of law the case shall be referred for decision by a Full Bench and r 5 says that if any such question arises in any case coming before a Division Bench as Court of Criminal Appeal Reference or Revision the Court referring the case shall state the point or points on which they differ from the decision of a former Division Bench and shall refer the case to a Full Bench for such orders as to such Bench seem fit
In his judgment PB Mukherjee J referred to two earlier decisions of the Calcutta High Court Nilratan Sen vs Jogesh Chandra Bhattacharia1 and Kamal Chandra Pal vs Gourchand Adhikary 2 and observed that the question as to whether those decisions were good law arose in the case and he gave that as a reason for referring the case to the Chief Justice for the constitution of a larger Bench
Even if rr 1 and 5 in Chapter VII may not strictly speaking apply to the present case because the Division Bench consisting of Mukerjee and Bose JJ
did not formulate the point or points on which they differed from the earlier Division Bench decisions referred to by Mukherjee J I think that the principle of those rules would apply and it was open to the Chief Justice on a reference by the Division Bench to constitute a larger Bench to consider the case
I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to r 9 in Chapter II correspon 312 ding to the proviso to r
I does not take away the inherent power of the Chief Justice to refer any matter to Bench of three Judges
Sub rule1 of r 9 itself provides that a Division Bench for the hearing of cases on appeal reference or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges
Therefore it was open to the Chief Justice to constituted Bench of three Judges for the hearing of the case and in my view it made no difference whether he constituted such a Bench originally or on a reference back by the Division Bench
I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances
Take for instance a case where one Judge of the Division Bench feels for a sufficient and good reason that he should not hear the case
It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench
The Chief Justice I think must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or Otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case
Section 229 of the Code of Criminal Procedure does not apply to such a case because it is not a case where the Judges composing the Court are equally divided in opinion
Rather it is a case where the Judges composing the Division Bench consider that the case is one of such importance that it should be heard by a larger Bench
My conclusion therefore is that there was nothing illegal in the Division Bench consisting of Mukherjee and Bose
referring the case back to the Chief Justice nor was there anything illegal in the Chief Justice constituting a special Bench of 313 three Judges to hear the applications in revision
The special Bench constituted by the Chief Justice was lawfully in seizin of the case and was competent to deal with it
The objection as to the jurisdiction of the special Bench to hear the case was in my opinion rightly overruled by it
Now as to section
Section 196A of the Code of Criminal Procedure may be read first
That section is in these terms 196A No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code
1 in a case where the object of the conspiracy is to commit either an illegal act other than an offence or a legal act by illegal means or an offence to which the provisions of section 196 apply unless authority from the State Govern upon complaint made by order or under authority from the State Government or some officer empowered by the State Government in this behalf or 2 in a case where the object of the conspiracy is to commit any non cognizable offence or a cognizable offence not punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has by order in writing consented to the initiation of the proceedings Provided that where the criminal conspiracy is one to which the provisions of subsection 4 of section 195 apply no such consent shall be necessary 314 The argument before us on behalf of the appellants has proceeded on the footing that in para 5 of the second complaint Saroj Ranjan Sarkar had alleged that the accused persons had entered into a criminal conspiracy with one another and other persons unknown to dishonestly and fraudulently forge certain documents and in pursuance thereof either forged or caused to be forged those documents and used them as genuine
This allegation it is argued attracted cl
2 of section 196A inasmuch as the object of the conspiracy was to commit non cognizable offences under sections 467 and 471 of the Indian Penal Code therefore it was necessary to obtain by order in writing the consent of the State Government or of the Chief Presidency Magistrate to the initiation of the proceedings and such consent not having been obtained the issue of processes by the Chief Presidency Magistrate violated the provisions of section 196A of the Code of Criminal procedure
The special Bench repelled this argument on the following grounds
It pointed out the distinction between the offence of criminal conspiracy as defined in section 120A and punishable by section 120B and the offence of abetment by conspiracy as defined in the clause secondly in section 107 of the Indian Penal Code
It then pointed out that the Chief Presidency Magistrate did not take cognizance of the offence of criminal conspiracy to commit forgery which would be punishable under section 120B read with section 467 of the Indian Penal Code but he took cognizance of the offence of abetment of forgery punishable under section 467 read with section 109 of the Indian Penal Code and for this offence no sanction under section 196A of the Code of Criminal Procedure was necessary
The special Bench further expressed the view that the primary offences which the second complaint disclosed where the offence of forgery of using forged documents as genuine and of abetment of the said offences and as cognizance of these offences did not require sanction or 315 prior consent of the authorities mentioned in section 196A the order of the Chief Presidency Magistrate could not be said to have violated the provisions of that section
The correctness of these views of the special Bench has been very seriously contested
I may make it clear at the very outset that the mandatory provisions of section 196A of the Code of Criminal Procedure cannot be evaded by resorting to a mere device or camouflage
The test whether sanction is or is not necessary does not depend on mere astuteness of drafting the petition of complaint
For example in the second petition of complaint under consideration before us the heading indicated that the offences in respect of which the petition of complaint was filed were offences under sections 467 471 and 109 of the Indian Penal Code but in para
5 of the petition the allegation was that the accused persons had entered into a criminal conspiracy with one another and others unknown to forge certain documents
It would not be proper to decide the question of sanction merely by taking into consideration the offences mentioned in the heading or the use of the expression criminal conspiracy in para
The proper test should be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A2 of the Code of Criminal Procedure
It is from that point of view that the petition of complaint must be examined
There is another principle laid down by this Court which should be kept in mind
The allegations made in the complaint may have more than one aspect and may disclose more than one offence
What would be the position when some of the offences disclosed do not require any sanction while others require sanction  This question was considered by this Court in 316 Basir ul huq vs State of West Bengal1
That was case in which the accused person lodged information at a police station that X had beaten and throttled his mother to death and when the funeral pyre was in flames he entered the cremation ground with police the dead body was examined and the complaint was found to be false
On the complaint of X the accused person was charged with offences under section 297 Indian Penal Code trespass to wound religious feelings and section 500 Indian Penal Code defamation
It was contended that as the complaint disclosed offences under section 182 and 211 Indian Penal Code the Court could not take cognizance of the case except on a complaint by the proper authority under section 195 of the Code of Criminal Procedure
It was held that the facts which constituted the offence under section 297 where distinct from those which constituted an offences under section 182 as the act of trespass was alleged to have been committed after the making of the false report so section 195 was no bar to the trial of the charge under section 297
It was further held that as regards the charge under section 500 where the allegations made in a false report disclose two distinct offences one against a public servant and the other against a private individual the latter is not debarred by provisions of section 195 of the Code of Criminal Procedure from seeking redress for the offence committed against him
Referring to section 195 of the Code of Criminal Procedure Mahajan J who delivered the judgment of the Court said The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under section 182 can be taken cognizance of
It does not further provide that if in the course of the commission of that offence other distinct offences are committed the magistrate is debarred from taking cognizance in respect of those offences as well
The allegation made 317 in a complaint may have a double aspect that is on the one hand these may constitute an offence against the authority of the public servant or public justice and on the other hand they may also constitute the offence of defamation or some other distinct offence
The section does not per se bar the cognizance by the magistrate of that offence even if no action is taken by the public servant to whom the false report has been made
x x x x As regards the charge under section 500 Indian Penal Code it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences one against the public servant and the other against a private individual that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him
 Keeping the aforesaid two principles in mind let me examine the second complaint in this case in order to find out what essential offences the allegations made therein disclosed
Paragraph 5 of the petition of complaint on which much reliance has been placed on behalf of the appellant alleges 1 that the accused persons entered into a criminal conspiracy with one another and others unknown to forge certain documents 2 that in pursuance of the conspiracy those documents were forged or caused to be forged and 3 that the documents so forged were used as genuine
The paragraph then recited three documents which were said to have been forged
It is thus clear that apart from the conspiracy the second complaint alleged that offences under sections 467 and 471 of the Indian Penal Code had also been committed
The special Bench rightly pointed out that the offences under sections 467 and 471 of the Indian Penal Code were distinct from the offence of criminal conspiracy and did not require any prior consent for the initiation of 318 Proceedings therefor under section 196A2 of the Code of Criminal Procedure
The question of therefore boils down to this in view of the allegation that there was a criminal conspiracy was the chief Presidency Magistrate debarred from taking cognizance of the case even though certain other distinct offences were alleged which did not require sanction  I am in agreement with the special Bench that the answer to the question must be in the negative
Furthermore it appears to me that though the expression criminal conspiracy occurs in para
5 of the complaint the facts alleged in the petition of complaint essentially disclose an offence of abetment by conspiracy
This brings us to the distinction between the offence of criminal conspiracy as defined in section 120A and the offence of abetment by conspiracy as defined in section 107 of the Indian Penal Code
Section 120A which defines the offence of criminal conspiracy and section 120B which punishes the offence are in Ch
VA of the Indian Penal Code
This Chapter introduced into the criminal law of India a new offence namely the offence of criminal conspiracy
It was introduced by the criminal Law Amendment Act 1913 VIII of 1913
Before that the sections of the Indian Penal Code which directly dealt with the subject of conspiracy were these contained in Ch
V and section 121 Ch
VI of the Code
The present case is not concerned with the kind of conspiracy referred to in section 121A
The point before us is the distinction between the offence of abetment as defined in section 107 Ch V and the offence of criminal conspiracy as defined in section 120A Ch VA
Under section 107 second clause a person abets the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and an order to the doing of that thing
Therefore in order to constitute the offence of abetment by conspiracy there 319 must first be a combining together of two or more persons in the conspiracy secondly an act or illegal omission must take place in pursuance of that conspiracy and in order to the doing of that thing
It is not necessary that the abettor should concert the offence with the person who commits it
It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed
It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment
Something more is necessary namely an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made
Before the introduction of Ch
VA conspiracy except in cases provided by sections 121A 311 400 401 and 402 of the Indian Penal Code was a mere species of abetment where an act or an illegal omission took place in pursuance of that conspiracy and amounted to a distinct offence
Chapter VA however introduced a new offence defined by section 120A
That offence is called the offence of criminal conspiracy and consists in a mere agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means there is a proviso to the section which says that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof
The position therefore comes to this
The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means
When the agreement is to commit an offence the agreement itself becomes the offence of criminal conspiracy
Where however the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means some act besides the agreement is necessary
320 Therefore the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy so far as the agreement to commit an offence is concerned lies in this
For abetment by conspiracy mere agreement is not enough
An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for
But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence
Willes J observed in Mulcahy vs The Queen 1 When to agree to carry it into effect the very plot is an act in itself and the act of each of the parties promise against promise actus contra actum capable of being enforced if lawful punishable if for a criminal object or for the use of criminal means
 Put very briefly the distinction between the offence of abetment under the second clause of section 107 and that of criminal conspiracy under section 120A is this
In the former offence a mere combination of persons or agreement between them is not enough
An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for in the latter offence the mere agreement is enough if the agreement is to commit an offence
So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in sections 108 to 117
It is unnecessary to detail those circumstances for the present case
For the offence of criminal conspiracy it is punishable under section 120B Having regard to the distinction pointed out above I am of the opinion that para
5 of the second complaint though it used the expression criminal conspiracy really disclosed an offence of abetment by conspiracy
It made no allegation 321 of any agreement between the several persons at a particular place or time
It said that the accused persons complained against entered into a conspiracy to forge certain documents were forged or caused to be forged
In other words an illegal act was done in pursuance of the conspiracy and furthermore the documents so forged were used as genuine
Having regard to these allegations in para
5 of the second complaint I am unable to hold that the learned Chief Presidency Magistrate was wrong in taking cognizance of the offence of abetment by conspiracy for which offence no consent or sanction under section 196A of the Code of Criminal Procedure was necessary
Therefore there was violation of the provisions of that section
In this view of the matter it is unnecessary to consider the correctness or otherwise of the further view expressed in some of the decisions see for example State of Bihar vs Srilal Kejriwal 1 to which the special Bench has referred that there the matter has gone beyond a mere conspiracy and substantive offences are alleged to have been actually committed in pursuance thereof sections 120A and 120B are wholly irrelevant
That view has not been accepted as correct by some of the other High Courts
In the State of Andhra Pradesh vs Kandimalla Subbaiah 2 this Court held that offences created by sections 109 and 120B Indian Penal Code were distinct offences though for a reason stated somewhat differently from what I have stated
It further held that where a number of offences were committed by several persons in pursuance of a conspiracy it was not illegal to charge them with those offences as well as with the offence of conspiracy to commit those offences though it was not desirable to charge the accused persons with conspiracy with the ulterior object of letting in evidence which would otherwise be inadmissible and furthermore it was undesirable to complicate a 322 trial by introducing a large number of charges spread over a long period
The question was treated as one of propriety rather than of legality
The question of sanction was also considered in that case but in view of the order of remand passed no opinion was expressed thereon
The special Bench expressed the view that it was not necessary to go to the extent of saying that in a case of this nature sections 120A and 120B became wholly irrelevant
The special Bench proceeded on the footing that irrespective of whether sections 120A and 120B became wholly irrelevant or not the second complaint undoubtedly disclosed an offence of abetment by conspiracy and it was open to the Chief Presidency Magistrate to take cognizance of that offence
I think that there are no good reasons for holding that the view taken by the special Bench is not correct
In my opinion the special Bench rightly overruled the objection as to the alleged violation of the provisions of section 196A of the Code of Criminal Procedure
Now I come to the third and principal question agitated in these appeals
On behalf of one of the appellants Saurindra Mohan Basu Mr Purushottam Trikumdas has argued before us that when the first complaint containing more or less the same allegations was dismissed under section 203 of the Code of Criminal Procedure by the Chief Presidency Magistrate it was not at all open to his successor to entertain the second complaint
He has put the matter as one of law and has argued that the only way of getting rid of an order of dismissal under section 203 of the Code of Criminal Procedure known to the Code of Criminal Procedure is to have it act aside in accordance with the procedure laid down in sections 436 and 439 of the Code
He has further argued that as a matter of law a second complaint is not entertainable as long as the order of dismissal under section 203 of the Code 323 of Criminal Procedure is not set aside by a competent authority
His argument is that the two decisions in Nilratan Sen vs Jogesh Chandra Bhattacharjee1 and Kamal Chandra Pal vs Gourchand Adhikary 2 should be held as good law
Section 403 of the Code of Criminal Procedure is relevant to this argument
It embodies the well established rule of common law that a man may not be put twice in peril for the same offence and that no man should be vexed with several trials for offences arising out of identical acts
An Explanation appended to the section says inter alia that the dismissal of complaint or the discharge of accused person is not an acquittal for the purposes of the section
If the Legislature had intended that the dismissal of complaint or the discharge of an accused person would be a bar to fresh proceeding on the same allegations unless the order of dismissal or discharge were set aside by a higher court it would have said so either explicitly or by omitting the Explanation altogether
Therefore the effect of the Explanation is that under section 403 a fresh trial is barred only in cases of acquittal or conviction by a court of competent jurisdiction coming within the purview of sub section
1 thereof
This aspect of the question was considered in Queen Empress vs Dolegobind Dass 3 which was a case dealing with a previous order of discharge of the accused person
In that case Maclean C J referred to the decision in Nilratan Sen s case and said There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as the order of dismissal remains unreversed  see per Benerjee J in Nilratan Sens  vs Jogesh Chandra Bhattacharjee supra
I agree in that
If then there be no express provision 324 in the Code what is there to warrant us in implying or in effect introducing into the Code a provision of such serious import x x x In the absence of any other provision in the Code to justify such an implication x x x x I can appreciate no sound ground for the Court so acting were it to do so it would go perilously near to legislating instead of confining itself to construing the Acts of the Legislature
 The question was then considered by a Full Bench of the Calcutta High Court in Dwarka Nath Mondul vs Beni Madhab Banerjee 1 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 case2 and Kamal Chandra Pal s case3 were referred to in the arguments as summarised in the report but the view expressed therein was not accepted
Dealing with the question Princep 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 section 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 recognised 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 witness and to hear them in the presence of the accused 325 The same view was expressed by the Madras High Court in In re
Koyassan Kutty 1 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 vs Chinna Naicker 2 where it was held that the fact that a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure was no bar to the entertainment of a second complaint
In Hansabai Sayaji vs Ananda Ganuji 3 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 vs Panachand Jain 4 Ramanand vs Sheri 5 and Allah Ditta vs Karam Baksh 6
In all these decisions it was recognised 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
The question of the existence of exceptional circumstances for the entertainment of a second complaint is a question to which I shall come later
At the present moment I am considering the argument of Mr Purshottam Tricumdas that the law prohibits altogether the entertainment of a second complaint when a previous complaint on the same allegations had been dismissed under section 203 of the Code of Criminal Procedure
On this question the High Courts appear to me to be almost unanimously against the contention of Mr Purshottam Tricumdas and for the reasons given in the decisions to which I have earlier referred I 326 am unable to accept his contention
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 section 2041 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 question now is what should be those exceptional circumstances  In Queen Empress vs Dolagobind Dass 1 Maclean C J said I only desire to add that no Presidency Magistrate ought in my opinion to rehear a case previously dealt with by a Magistrate of coordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice Thus according to this decision the exceptional circumstance must be such as would lead the Magistrate to think that the previous order of dismissal was due to a manifest error or resulted in a manifest miscarriage of justice
In re
Koyassan Kutty 2 Sadasiva Aiyar J formulated the test of exceptional circumstances in the following words Taking it then that the discharge was proper and legal there is no doubt nothing in law against the entertainment of a second 327 complaint on the same facts as a discharge is not equivalent to an acquittal but I think that unless very strong grounds are shown a person who has been charged once and discharged ought not to be harassed again on the same charge
It is not alleged that new facts have been discovered which the police did not know when they brought the first charge
 In this decision the test formulated was the discovery of new facts which were not known when the first charge of complaint was made
In Kumariah vs Chinna Naicker1 the same test was again applied when it was observed There is nothing to indicate that there was no proper investigation on the previous complaint or that there was any necessity for investigating the second complaint
x x x No additional witness had been cited in the second complaint nor as pointed out by the Additional Magistrate was it alleged that any other kind of evidence had been discovered or was likely to be forthcoming
 It is worthy of note however that Kuppuswami Aiyar J did not say that the discovery of a new fact or new evidence must be of such a character that it was not known to the complainant when the prior complaint was brought and dismissed
In Hansabai Sayaji vs Ananda Ganuji 2 it was pointed out that the circumstance that the second complaint was filed by a person other than the one who made the first complaint made no difference and the test laid down in some early Rangoon High Court decisions Ma The Kin vs Nga E Tha 3 and U Shwe vs Ma Sein Bwin 4  was accepted as the correct test
In Ma The Kin s case supra the test was thus expressed 328 It is the duty of a Magistrate therefore who receives a complaint in a case where there has been a previous order of dismissal or discharge not to issue process unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice or unless new facts are adduced which the complainant had not knowledge of or could not with reasonable diligence have brought forward in the previous proceedings
 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 vs Panachand Jain 1 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 vs Dolegobind Dass 2 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 section 203 329 of the Code of Criminal Procedure
I do not think that in a matter of this kind it is either possible or even desirable that the exceptional circumstances must be stated with any more particularity or precision
The learned Advocate for the respondent argued before us that a new category should be added and he called it frustration of justice
I am of the view that apart from any question of felicity of this new expression this new category does not give any more assistance towards explaining the exceptional circumstances which must exist before a second complaint on the same allegations can be entertained
I am content in this case to proceed on the footing that the Magistrate must be satisfied that there was a manifest error or a miscarriage of justice before he can entertain a second complaint on the same facts
In this case two exceptional circumstances were adverted to before us
One is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure and this it is contended resulted in a manifest miscarriage of justice when he dismissed the first complaint under section 203 of the Code of Criminal Procedure
I am of the view that there is substance in this contention
Section 203 of the Code of Criminal Procedure states that the Magistrate may dismiss the complaint if after considering the statement on oath if any of the complainant and the witnesses and the result of the investigation or enquiry if any under section 202 there is in his judgment no sufficient ground for proceeding
Section 204 lays down that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding he shall issue a summon or a warrant as the case may require
What is the true scope and effect of the expression 330 sufficient ground for proceeding occurring in the aforesaid two sections  This was considered by this Court in Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker 1
With reference to sections 200 202 and 203 of the Code of Criminal Procedure it was there observed The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned
The section does not any that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial
 It was further observed that if the Magistrate had not misdirected himself as to the scope of an enquiry under section 202 and had applied his mind judicially to the materials before him it would be erroneous in law to hold that a plea based on an exception could not be accepted by in arriving at his judgment
In another decisions of this Court Ramgopal Genapatria Ruia vs State of Bombay 2 the expression sufficient grounds occurring in sections 209 210 and 213 of the Code of Criminal Procedure was considered and it was held that the expression did not mean sufficient grounds for the purpose of conviction but meant such evidence as would be sufficient to put the accused upon trial by the jury dealing with the first complaint the learned Chief Presidency Magistrate proceeded to consider not whether there was 331 sufficient ground for proceeding within the meaning of sections 203 and 204 of the Code of Criminal Procedure but whether there was sufficient evidence for conviction of the accused persons
In my opinion this approach was completely wrong and resulted in a manifest miscarriage of justice
The learned Chief President Magistrate said In cases depending on circumstantial evidence in order to justify any inference that an offence has been committed the incriminating facts must be incompatible with innocence of the person accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt
If the circumstances are found to be as consistent with the guilt of the accused no inference of guilt can be drawn
In the present case the circumstances above equally may lead to the inference that the document was ante dated and might or might not have been forged
Therefore the circumstances are not precise to be of any value as evidence
 These observations clearly show that the learned Chief Presidency Magistrate misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure
He did not keep in mind the true purpose of the enquiry before him which was to ascertain whether there was evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the accused persons
He further failed to keep in mind that sections 203 and 204 of the Code of Criminal Procedure did not say that a regular trial for judging the guilt or otherwise of the person complained against should take place at that stage
It was not for learned Chief Presidency Magistrate to apply the test whether the circumstances were or were not incompatible with the innocence of the accused persons
The 332 purpose of the enquiry before him was merely to ascertain prime facie the truth or falsehood of the complaint
Instead of holding an enquiry into the complaint the learned Chief Presidency Magistrate proceeded as though he was trying the ease itself on merits
I consider that this mistake on the part of the learned Chief Presidency Magistrate gave a wrong direction to the whole proceedings on the first complaint and the order of dismissal passed by him was due to a manifest error and resulted in miscarriage of justice
The second exceptional circumstance is as to the presence of the telephone number City 6091 printed on the sheet of paper on which were typed the minutes of the proceedings dated January 16 1948
When the first complaint was dealt with by the Chief Presidency Magistrate no evidence was led to show that the City Exchange did not come into existence until December 1948 and that the telephone connection relating to that particular number was obtained for the first time by the Hindusthan Co operative Insurance Society Ltd on or about March 18 1949
This I think would be a new matter which was not considered when the first complaint was dismissed under section 203 of the Code of Criminal Procedure
There was a good deal of argument as to whether this matter relating to the City Exchange was known to the complainant and his brothers from before and if so why they did not bring it to the notice of the learned Chief Presidency Magistrate who dealt with the first complaint
it appears that an application dated June 7 1955 was made before Debabrata Mookerjee J who heard the application in revision with regard to the first complaint
In that application certain statements were made with regard to the City Exchange
Those statements did not however include any averment as to the knowledge of the complainant Promode Ranjan Sarkar about 333 the facts relating to the City Exchange and telephone number City 6091
The application merely stated that the facts stated therein were matters of public history and it was essential in the ends of justice to take judicial notice thereof
Debabrata Mookerji J apparently rejected this application but did not record any formal orders on that date
He recorded formal orders after he had dismissed the application in revision
He said therein that he was not prepared to take into consideration the facts alleged in the application dated June 7 1955 as they related to new matters
The argument on behalf of the appellants before us is that the facts relating to the City Exchange were not new matters because the complainant Saroj Ranjan Sarkar nowhere said that he did not know them before
The argument therefore is that it does not fulfil the test of new facts which the complainant have no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings
The learned Advocate for the respondent has in my opinion rightly submitted that it is somewhat illogical to say at one stage of the proceedings that the matter was a new matter and could not therefore be taken into consideration and at a later stage to say that it is not a new matter and therefore could not be taken into consideration
This much however is clear that the matter relating to the City Exchange and in particular telephone number City 6091 was not at all considered when the first complaint was dismissed under section 203 of the Code of Criminal Procedure
This matter is of some importance because if there was no such telephone number on January 16 1948 the minutes of the proceedings purporting to be of that date must have come into existence on a later date
This would have great relevance and bearing on the allegation of forgery made with regard to the minutes of the proceedings dated January 16 1948
334 On behalf of Saurindra Mohan Basu it was further contended that there was not even prima facie evidence against him and the learned Chief Presidency Magistrate was wrong in issuing process against him
It is only necessary to point out that the learned Chief Presidency Magistrate found that there was a prima facie case against Saurindra Mohan Basu
He had attested the signature of the late Nalini Ranjan Sarkar and if that signature was forged then that would be prima facie evidence against Saurindra Mohan Basu also
My learned brethren have taken the view that the entertaining of the second complaint in the circumstances of this case is a gross abuse of the processes of the Court
I find myself unable to subscribe to that view
My conclusion is just the opposite namely that the entertaining of the second complaint fully serves the interests of justice
I am further of the opinion that its dismissal would defeat the ends of justice
In this connection I have already referred to the two exceptional circumstances which exist one is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of sections 203 and 204 of the Code of Criminal Procedure the second is that Debabrata Mookerjee J wrongly refused to take into consideration the circumstances relating to the installation of the City Exchange and telephone number City 6091 circumstances which had a decisive bearing on the allegation of forgery made with regard to the minutes of the proceedings dated January 16 1948
Even a cursory perusal of the order of the Chief President Magistrate Shri N C Chakravarti dated August 6 1954 with regard to the first complaint shows that the learned Chief Presidency Magistrate proceeded on the footing as though he was trying a case based entirely on circumstantial evidence he formulated 335 the tests for drawing conclusions from circumstantial evidence and applying those tests he came to the conclusion that the complaint was not true
He rejected the evidence of the hand writing expert as though it was his function to try the case
He rejected the enquiry report of Shri A B Syam who held that there was a prima facie case for the issue of process on very insufficient grounds
He even went to the length of judging for himself the peculiar characteristics of Nalini Ranjan Sarkar s hand writing depending on the personality of the writer
In my view in all these matters the learned Chief Presidency Magistrate misdirected himself as to the true scope of the enquiry before him and he forgot that what he had to find was whether prima facie there was believable evidence in support of the allegations made in the complaint
This does not necessarily mean that a Magistrate dealing with a complaint is obliged to bind himself to a mere mechanical or a wholly uncritical acceptance of the complainant s story
Indeed it is the duty of the Magistrate to judge the materials on which he has to make up his mind as to the sufficiency or otherwise of the ground for proceeding further with the complaint and in judging the materials he must sift them and submit them to a critical examination
This aspect of the question was argued before Debabrata Mookerjee J and he referred to it in his judgment
I say this without meaning any disrespect to the learned Judge but it appears to me that he missed the distinction which was pointed out by this Court in Ramgopal Ganpatrai Ruia vs The State of Bombay1 namely that the expression sufficient grounds occuring in sections 209 210 and 213 of the Code of Criminal Procedure does not mean sufficient grounds for the purpose of conviction but means such evidence as is sufficient to put the accused person upon trial by the jury
In sections 203 and 204 Criminal Procedure Code the expres 336 sion is sufficient ground for proceeding which really means sufficient ground for proceeding with the complaint
Sufficient ground for proceeding with the complaint is one matter and sufficient ground for convicting an accused person is quite a different matter
It is this distinction which has to be kept in mind and the failure to keep such a distinction in mind in the present case has resulted in a manifest error
Debabrata Mookerjee J detailed seven circumstances as those on which the complainant relied in support of the allegation of forgery
He then went on to deal those circumstances as though the function of the Court then was to find out whether there was sufficient ground for convicting the accused person
I refer particularly to the view expressed by the learned Chief Presidency Magistrate to the effect that one of the documents in question might have been ante dated by Nalini Ranjan Sarkar himself
This was a suggestion made on behalf of the accused persons as a possible defence to the charge of forgery and it was not the function of the Chief Presidency Magistrate to consider the defence at that stage
Debabrata Mookerjee J himself said If on the other hand the Magistrate has met the facts alleged by the complainant by anticipating possible defences to the charge thus travelling beyond the facts themselves and the inferences and the probabilities legitimately raised by them he must be held to have exceeded the allowable limits of an initial test of the complainant s story Yet the possible defence that Nalini Ranjan Sarkar might have himself ante dated the document was not only considered by the learned Chief Presidency Magistrate but was accepted by Debabrate Mookerjee J This in my opinion clearly demonstrates the manifest error or injustice which has taken place in this case though in the concluding part of his 337 judgment Debabrata Mookerjee J expressed the view that he did not consider that the learned Chief Presidency Magistrate had over stepped the permissible limits of a preliminary probe into the truth or otherwise of the complainant s story
He further said that in his view the learned Chief Presidency Magistrate in sifting the materials offered did not dispose of them by anticipating a possible defence of the parties yet the one possible defence to the charge of forgery was that Nalini Ranjan Sarkar might himself have antedated the document in question and that very defence was considered and accepted not only by the learned Chief Presidency Magistrate but by Debabrata Mookarjee J also
The second mistake which led to a manifest injustice was the refusal to take into consideration the circumstances relating to the installation of the City Exchange and the telephone number City 6091
Debabrata Mookerjee J made no orders on the application dated June 7 1955
In his final order he said The application speaks for itself
I was not prepared on that date to take any notice of the new matters mentioned in that application and I adhere to my decision
 In my view Debabrata Mookerjee J was grievously in error in rejecting the application
As I have said earlier the circumstances relating to the installation of the City Exchange and telephone number City 6091 had a decisive bearing on the truth or otherwise of the allegation of forgery and to reject the application to take those circumstances into consideration really amounted to a denial of justice
Debabrata Mookerjee J took the view that it was a new matter which could not be taken into consideration and pradoxically enough the argument before us is that not being a new matter it should not have been taken into consideration 338 in connection with the second complaint
This paradox clearly demonstrates the injustice that will result from a failure to take into consideration circumstances which are decisive of the allegations made in the complaint
When the complainant made an application for a certificate for appeal to the Supreme Court against the order passed by Dababrata Mookerjee
J he forcefully contended that the refusal to take notice of the circumstances relating to the installation of the City Exchange amounted to a denial of justice
This application was dealt with by a Bench of two Judges of the Calcutta High Court Das Gupta and Bachawat JJ
The learned Judges expressed the view that if they were dealing with the matter they would have thought it right to refer to the appropriate books for ascertaining the date on which the City Exchange came into existence
They however felt that the matter was within the discretion of Debarata Mookerjee J and they were not prepared to give a certificate in a matter of discretion
Another point which was urged before that Bench was this
The complaint was for offences triable by the Court of sessions and the question which the learned Chief Presidency Magistrate had to put himself was not whether he for himself believed the allegations to be true but whether the materials before him were such that thereupon a reasonable body of men might believe the allegations to be true
The learned Judge said In our judgment there is considerable force in this argument but at the same time we have to take notice of the fact that this question does not appear to have been decided by the courts Since those observations were made a decision has been given by this Court and that decision supports the contention urged on behalf of the complainant
The matter then came to this Court on an applica 339 tion for special leave and special leave was granted by this Court on February 13 1956
An appeal was filed in pursuance of that special leave but ultimately Promode Ranjan Sarkar withdrew his appeal by filing a petition on February 3 1959
In that petition he stated that at the intervention of common friends and well wishers of the parties he had settled his disputes with the respondents therein and did not want to proceed with the appeal a statement which in the circumstances of this case amounts almost to compounding a felony
The appeal was accordingly withdrawn on March 12 1959
The present complaint Saroj Ranjan Sarkar alleged in his petition of complaint that the withdrawal of the appeal filed in this Court in the circumstances stated above was due to undue influence exercised by the accused persons
Whether that allegation is correct or not can only be determined after evidence has been led
There are however circumstances which seem to me indicate that the withdrawal of the appeal in this Court was for the purpose of defeating the ends of justice
The accused persons must have realised that if the evidence relating to the installation of the City Exchange and telephone No City 6091 was available and considered then there would be no escape from the position that the minutes of the proceedings of the Board meeting of NR Sarkar and Co Ltd dated January 16 1948 must have been forged and this aspect of the matter was very rightly emphasised by the learned Chief Presidency Magistrate Shri Bijayesh Mukherjee who dealt with the second complaint as also by the Special Bench of three Judges who dealt with the matter on the revision applications made against the order of the learned Chief Presidency Magistrate on the second complaint
It is also worthy of note that this Court must have granted special leave in respect of the order passed on the first complaint because it felt that there were arguable points in support of the 340 application for special leave one of such points apparently being the refusal to consider the circumstances relating to the installation of the City Exchange
On the second complaint the learned Chief Presidency Magistrate as also the High Court took those circumstances into consideration and rightly held that those circumstances clearly indicated that the allegations made in the complaint were prima facie true
The learned Chief Presidency Magistrate further held that having regard to the antecedent circumstances there was no undue delay in filing the second complaint
He further held that there was no intention to blackmail in the sense that one brother having failed on the first complaint another brother was fraudulently trying to start afresh the criminal law in motion
These findings of the learned Chief Presidency Magistrate were accepted by a Special Bench of three Judges of the Calcutta High Court
I have heard nothing in the course of the arguments addressed before us which would justify me to go behind those findings particularly in an appeal filed by special leave under article 136 of the Constitution
The learned Chief Presidency Magistrate and a Bench of three Judges of the Calcutta High Court held specifically on the second complaint that there was a prima facie case and the dismissal of the first complaint resulted in manifest injustice
I see no reasons to differ from the view thus expressed by the learned Chief Presidency Magistrate and the High Court
For these reasons I have come to the conclusion that there are no good grounds for interfering with the judgment and order of the Special Bench dated December 2233 1960
I would accordingly dismiss the two appeals
The Judgment of Kapur and Hidayatullah JJ was delivered by KAPUR J There are two appeals against the judgment and order of the High Court of 341 Calcutta which raise the question of competency of a second complaint in regard to the same matter after the first complaint has been dismissed under section 203 of the Code of Criminal Procedure
The respective appellants in the two appeals are P N Taluqdar and Sourindra Mohan Basu an attorney of Calcutta against whom process has been issued by the Chief Presidency Magistrate Calcutta on a complaint filed by the respondent Saroj Ranjan Sarkar
The facts of these appeals are these In 1944 a private limited company N R Sarkar  Co Ltd was formed by the late Mr N R Sarkar who was a well known financier and industrialist and a public man of Bengal
This company was the Managing Agent of several public limited companies such as Hindusthan Development Corporation Ltd Hindusthan Chemicals Limited Hindusthan Pilkington Glass Works Limited etc
Mr N R Sarkar was the Managing Director of N R Sarkar  Co Ltd Out of the share capital of this company he held 4649 shares
His younger brother Promode Ranjan Sarkar held 50 shares
Appellant P N Taluqdar who was a paid employee of the Hindusthan Cooperative Insurance Co Ltd held 300 shares and was a director of the Company and Shanti Ranjan Sarkar a son of N R Sarkar s deceased brother held one share
As Mr N R Sarkar became the Finance Minister in the West Bengal Government he obtained leave of absence on January 4 1948 from the directors of N R Sarkar  Co Ltd for a period of one year which was subsequently extended for another year
This was by a resolution passed on March 10 1948
Mr N R Sarkar joined the Government on January 23 1948 and in August 1948 Dr N N Law became a director of N R Sarkar  Co Ltd On July 31 1951 Mr N R Sarkar executed a deed of trust in respect of 2920 shares out of his 342 holding in Hindusthan Cooperative Society Ltd and 3649 shares out of the shares held by him in N R Sarkar  Co Ltd By this deed he appointed as trustees his younger brother Promode Ranjan Sarkar appellant P N Taluqdar and Dr N N Law and the beneficiaries under the trust deed were his four younger brothers including the complainant and Shanti Ranjan Sarkar his nephew
It is alleged that the balance of 1000 shares was to be kept in trust by the appellant P N Taluqdar for the benefit of his brothers and nephew
N R Sarkar died on January 25 1953
It is alleged that a few days after the death of Mr N R Sarkar the appellant Sourindra Mohan Basu in a casual manner informed Promode Ranjan Sarkar that his brother N R Sarkar had executed two documents one an unregistered deed of agreement dated January 19 1948 appointing the appellant P N Taluqdar as the Managing Director of N R Sarkar  Co Ltd and a deed of transfer dated February 5 1951 transferring 1000 shares in N R Sarkar  Co Ltd in his P N Taluqdar s favour
Promode Ranjan Sarkar and his brothers without giving much credence to this information wanted to see the documents but they were not allowed to do so
On July 31 1953 appellant P N Taluqdar resigned from the Hindusthan Cooperative Insurance Society Ltd in order to take control of N R Sarkar  Co Ltd as it Managing Director
This led to trouble between Promode Ranjan Sarkar and the appellant P N Taluqdar and there was some correspondence between Promode Ranjan Sarkar and the appellant P N Taluqdar which it is unnecessary to refer to
At a meeting of the Board of Directors of N R Sarkar  Co held on September 22 1953 the appointment of appellant P N Taluqdar as Managing Director of N R Sarkar  Co Ltd was renewed for a period of seven years
This in spite of the 343 protest of Promode Ranjan Sarkar and in spite of the fact that that item was not on the agenda of the meeting
On October 11953 Promode Ranjan Sarkar took inspection of the agreement
On October 13 1953 he took inspection of the Minute book and took photostat copies of some of the documents but not of the resolution of January 16 1948
It is alleged that the appellants and other entered into a criminal conspiracy and fraudulently forged certain documents which in the complaint are described thus a An unregistered deed of agreement purporting to have been executed by the late Sri Nalini Ranjan Sarkar as Governing Director of N R Sarkar  Company Limited on 19th January 1948 while he was on leave as stated above appointing accused No 1 P N Taluqdar as the Managing Director of N R Sarkar  Company Limited on a remuneration of Rs 1500 100 2000 per month and the deed bears the signature of accused No 2 section N Basu as the sole attesting witness
b A transfer deed in respect of 1000 shares of N R Sarkar  Co Ltd which has been entrusted to accused No 1 as stated before transferring them to accused No 1 for an alleged consideration of Rs 100000Rupees One Lakh also purporting to have been executed by the late Sri Nalini Ranjan Sarkar on 5th February 1951 with accused No 2 as attesting witness both for the transferor and transferee
344 c Minutes of the proceedings of the Board
Meetings of the said N R Sarkar  Company Limited including those of a meeting dated 16th January 1948 purporting to bear the signature of the aforesaid late Sri Nalini Ranjan Sarkar
 These documents it is alleged are forged and have been used and by the use of these forged documents a fraud has been perpetrated
On April 3 1959 respondent filed in the Court of the Chief Presidency Magistrate Calcutta a complaint under sections 467 471 read with section 109 of the Indian Panel Code 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
Before dealing with the allegations in this complaint it is necessary to give some further facts of the case
On December 12 1953 Pramode Rajan Sarkar laid an information with the Commissioner of Police Calcutta against the persons against whom the above mentioned complaint was later filed
It appears that the matter was investigated by the police and by a letter dated February 16 1954 the Police Commissioner expressed the opinion that there was no substance in the allegations which were being made by Pramode Ranjan Sarkar against the appellants and two others
He stated 
I have given this matter very careful consideration gone through various reports and papers and even examined an important witness myself
My examination has led me to conclusion that allegations are false and vexations
 On March 17 1954 Pramode Ranjan Sarkar filed a complaint under sections 467 471 and ss457 471 read with section 109
After setting out the facts which have 345 been given above and after referring to the three documents which were alleged to have been forged it was stated that the deed of agreement was engrossed on a stamp paper purchased in the name of PD Himmatsinghka  Co a firm of solicitors instead of in the name of the parties that the resolution of January 16 1948 which purported to bear the signature of the deceased was in fact not signed by him that during the lifetime of Nalini Ranjan Sarkar and after a considerable period after his death the appellant P N Taluqdar never alleged that he had been appointed the Managing Director of N R Sarkar  Co Ltd nor did even appear from any resolution of the Board of N R Sarkar  Co that he was appointed the Managing Director until September 1953
Certain other allegations which need not be set out at this stage were also made in this complaint for the purpose of showing that the appellants had been guilty of forgery and for using forged documents and for conspiracy
The matter was heard by the Chief Presidency Magistrate Mr N C Chakraborty who after examining all the witnesses who were produced before him dismissed the complaint by an order dated August 6 1954
The learned Chief Presidency Magistrate examined the handwriting expert and after taking all the facts into consideration he held that the evidence on handwriting including the opinion of the Handwriting Expert does not support the complainant s version Against this order the complainant Pramode Ranjan Sarkar took a revision to the Calcutta High Court which was heard by Debabrata Mookerjee J Before him three contentions were raised 1 that the Chief Presidency Magistrate erred in examining the witnesses himself after he had received the result of the enquiry held by Mr A B Shyam 346 another Magistrate under section 202 Code of Criminal Procedure 2 the learned Magistrate misunderstood the scope of sections 202 and 203 and misdirected himself by insisting upon a standard of proof which the law did not require at the initial stage when the only question was whether the process should issue or not and the third contention related to the power of revision of High Court under section 439 when dealing with orders of a Chief Presidency Magistrate
The learned Judge held against the complainant Pramode Ranjan Sarkar on the points that were raised before him
He held that it was open to the Chief Presidency Magistrate to examine witnesses 2 the learned Magistrate had not misdirected himself in regard to the scope of sections 202 and 203 and that he could dismiss the complaint if in his judgment there was no sufficient ground for proceeding
He also held that the order of Magistrate was liable to be interfered with if it was made in disregard of the rules of procedure or it was so grossly improper or so palpably incorrect as to require a revision in the interest of justice
The learned judge then examined the evidence which had been produced before the Magistrate and taking the various circumstances into consideration discharged the rule and dismissed the revision holding that the complainant Pramode Ranjan Sarkar was guilty of undue delay in taking action against the appellants because he came to know on October 13 1953 as to the forged nature of the documents and did not take any action till he wrote to the Police Commissioner to which he got reply on February 16 1954 and he did not file any complaint or take any action till march 17 1954 and this delay was unexplained
He also held that the complainant Pramode Ranjan Sarkar s belief in regard to forgery was not established by the evidence which had been produced because 1 he came to know about the agreement complained of in February 1953 but he discredited it and did 347 not take any action 2 that when the agreement came up for renewal on September 22 1953 for another term of the 7 years he did not oppose it on the ground that it was a forgery but on legal grounds
The learned judge did not believe the evidence of Pramode Ranjan Sarkar that up to February 1954 he considered it absurd that there could be such a document
He referred to the correspondence which passed between the complainant and the appellant P N Taluqdar
He also considered the evidence relating to the watermark and the circumstances in support of the allegation of the theory of forgery and not being satisfied with the evidence he dismissed the revision petition and thus the order of the Chief Presidency Magistrate Mr Chakraborti was upheld
It may be pointed out that on behalf of complainant Pramode Ranjan Sarkar an application was made on June 6 1955 drawing the attention of the Court to the fact that on the sheet of a paper on which the minutes of the meeting held on January 16 1948 had been typed there was printed Telephone City 6091 and that Exchange had not come into existence till December 1948
It was not stated when the complainant came to know of this fact
The learned Judge did not pass any separate order on this application and did not take it into consideration in his judgment
Against this order an application was made for a certificate under article 1341c which was dismissed but in that order this fact as to the City Exchange coming into existence in December 1948 has been taken note of
Pramode Ranjan Sarkar then applied to this Court for Special Leave which was granted on February 13 1956 but the appeal was withdrawn and was therefore dismissed or March 2 1959
The present respondent Saroj Ranjan Sarkar then brought a complaint under the same sections 348 on April 3 1959 making the same allegations as were made by his elder brother Pramode Ranjan Sarkar but there is one further allegation as to the Telephone City Exchange which did not find place in the previous complaint In this complaint after referring to the facts which have been set out above it was alleged in paragraph 5 as follows  That in order to assume complete control over N R Sarkar  Co Ltd and the concerns under its Managing Agency the accused entered into a criminal conspiracy with each other and others unknown to dishonestly and fraudulently forged a Deed of Agreement a Deed of Transfer and make a false document to wit minute book of N R Sarkar  Co Ltd and in pursuance thereof dishonestly and fraudulently forged andor caused to be forged and used as genuine the said documents
 The grounds for forgery were that the unregistered deed dated January 19 1948 was engrossed on a stamp paper purchased in the name of Ms P D Himmatsinghka  Co that the late N R Sarkar was on leave granted by the company and he never attended any meeting of the Board for more than four years as long as he was a Finance Minister that the signature of Mr N R Sarkar on the resolution dated January 16 1948 was forged that during the lifetime of NR Sarkar it was never given out by the appellant P N Taluqdar that he had been appointed a Managing Director that in none of the papers and correspondence and resolutions of the Board until September 1953 does it appear that the appellant P N Taluqdar was its Managing Director that the appellant P N Taluqdar continued to hold his post in the Hindusthan Cooperative Insurance Society Ltd up to the end of July 1953 that the signature in the deed of appointment was halting and appeared to be a forgery even to the naked eyes that the resolution 349 for renewal for seven years was passed in spite of the protest of Pramode Ranjan Sarkar who was a director of N R Sarkar  Co Ltd and inspection of the deed of appointment was not given to Pramode Ranjan Sarkar in spite of his demands
It was further alleged that the resolutions of the Board of Directors were all on loose sheets of paper that the signature on the resolutions were forged that there was internal evidence to show that the genuine minutes book had been dishonestly changed that the minutes of the proceeding of the Board of Directors said to have been held on January 16 1948 were on a typed sheet that the Telephone No City 6091 was printed thereon and the City Exchange was not in existence in January 1948 but came into existence in December 1948
It was prayed that the accused named therein which included the two appellants be proceeded against under sections 467 471 read with section 109 of the Indian Penal Code
It will be noticed therefore that all the allegations made by Saroj Ranjan Sarkar are the same as those made by Pramode Ranjan Sarkar except in regard to the City Exchange Telephone Number
This complaint was accompanied by an affidavit not of complainant Saroj Ranjan Sarkar but of Shanti Ranjan Sarkar his nephew
In paragraphs 1 to 7 of this affidavit he stated that the facts in regard to the Calcutta City Exchange were matters of public history as they were duly published in the columns of statesman dated December 29 1948 and he also stated that I am aware of the facts and circumstances stated above but he did not say as to when he came to know about the City Exchange matter
It may also be noted that in the application which was made by the complainant Pramode Ranjan Sarkar in the High Court before Debabrata Mookarjee J it was submitted that judicial notice be taken of the new 350 telephone exchange under section 57 but it was not stated as to when that complainant came to know about the new Telephone Exchange Number
That fact has been stated in the affidavit of Shanti Ranjan Sarkar in almost the same vague manner
The learned Chief Presidency Magistrate who took cognizance of the second complaint Mr Bijoyesh Mookerjee after considering the whole material placed before him issued process against the appellants only
He held that there was no delay on the part of the respondent in making the complaint that the previous complaint and the result thereof was no bar to the filing of the second complaint that the complaint was not brought with a view to blackmail the accused including the appellants that what the brother of the respondent did did not lay the respondent open to the charge of blackmail
On the merits he took into consideration the fact in regard to the City Exchange of which according to the learned Magistrate he could take judicial notice under section 57 of the Evidence Act
He compared various signatures of the late N R Sarkar and after considering the elaborate order of his predecessor he said  I have read and re read it and with respect too due to one of his eminence but it is my misfortune that I have not been persuaded
There are various other considerations which point to the ineluctable prima facie conclusion of forgery
But it is not proper that I burden my order with all that at this stage He held that he was satisfied about the truth of the allegations and there was sufficient ground for proceeding against the appellants under section 204 Criminal Procedure Code and he therefore issued process against them but did not issue any process against Dr N N Law and Amiya Chakravarty who were accused Nos 3 and 4 351 Against this order a revision was taken by the appellants to the High Court and rule was issued against the Chief Presidency Magistrate to show cause why his order should not be set aside
He showed cause and the matter was heard by a Division Bench consisting of P B Mukerjee and H K Bose JJ and the matter was referred to a larger Bench because of the importance of the questions of law which arose in the case
Three questions were raised before the Special Bench 1 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 2 whether a second complaint could be entertained on the same facts after a previous complaint had been dismissed and 3 whether the complaint could be taken cognizance of by the Magistrate in the absence of a sanction under section 196A of the Criminal Procedure Code
On all these three points the finding of the Special Bench was against the appellants
It held that the attention of the Chief Justice having been drawn to the fact that the case involved questions of importance it was open to him in the exercise of his inherent jurisdiction to refer the case to a larger bench and therefore the reference was not illegal
In regard to the filing of a second complaint it held that a fresh complaint could be entertained after the dismissal of previous complaint under section 203 Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming
The Bench was of the opinion that the fact in regard to the City Telephone Exchange was a new matter and because Pramode Ranjan Sarkar was not permitted to take a photostat copy of the Minutes Book it was possible that his attention was not drawn to the City Telephone Exchange which was not in existence at the relevant time and that there was sufficient reason for Pramode 352 Ranjan Sarkar for not mentioning the matter of City Exchange in his complaint
It also held that the previous Chief Presidency Magistrate Mr Chakraborty had altogether ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of N R Sarkar and he had no good reasons for not accepting their evidence
It could not be said therefore that there was a judicial enquiry of the matter before the previous Chief Presidency Magistrate the decision was rather arbitrary and so resulted in manifest miscarriage of justice
The Court was of the opinion therefore that there was no reason to differ from the finding of the Chief Presidency Magistrate Mr Bijoyesh Mukerjee and that there was a prima facie case against the appellants
The rules were therefore discharged
It is against this judgment and that the appellants have come in appeal to this court by Special Leave
Four appeals were filed by the two appellants two against the order of the High Court of Calcutta dismissing the revision petition and two against the order of the High Court refusing a certificate under article 134 1 c of the Constitution
As this Court granted special leave against the order of the High Court dismissing the Revision Petition the two appeals against the order refusing a certificate under article 134 1 c became infructuous and therefore were not pressed
It is only the appeals against the judgment and order of the High Court refusing to quash the order of the learned Chief Presidency Magistrate Mr Bijoyesh Mukerjee which survive for decision
The first question to be decided and that is the most vital question in the case is whether the second complaint filed by Saroj Ranjan Sarkar respondent should have been entertained  This complaint was brought on April 3 1959 the appeal in this Court brought by Pramode Ranjan Sarkar 353 the complainant in the previous complaint having been withdrawn on March 2 1959
The respondent holds no shares in N R Sarkar  Co Ltd He is a beneficiary under the deed of trust in trust in regard to certain number of shares
In regard to the unregistered deed of agreement appointing P N Taluqdar as Managing Director of NR Sarkar  Co Ltd he can have no interest
As regards the transfer deed of 1000 shares of N R Sarkar  Co Ltd which it is claimed were entrusted to P N Taluqdar appellant for the benefit of the respondent and his brothers a separate suit has been brought and is not the subject matter of the criminal complaint
There then remains the resolution of the Board dated January 16 1948 which stands on the same footing as the appointment to Managing Directorship and is connected with that matter and relates to it
Under the Code of Criminal Procedure the subject of Complaints to Magistrates is dealt with in Chapter XVI of the Code of Criminal Procedure
The provisions relevant for the purpose of this case are ss200 202 and 203
Section 200 deals with examination of complainants and sections 202 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process
The scope and extent of sections 202 and 203 were laid down in Vadilal Panchal vs Dattatraya Dulaji Chadigaonker1
The scope of enquiry under section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and section 203 lays down what materials are to be considered for the purpose
Under section 103 Criminal Procedure Code the judgment which 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 his mind to materials and from his judgment whether or 354 not there is sufficient ground for proceeding
Therefore if he has not misdirected himself as to the scope of the enquiry made under section 202 Criminal Procedure Code and has judicially applied him 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 section 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 eg 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 vs Karam Baksh1 Ram Narain Chaubey vs Panachand Jain2 Hansabai vs Ananda3 Doraisami vs Subramania 4
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 Macleam C J in Queen Empress vs Dolegobinda Das 5 affirmed by a full Bench in Dwarka Nath Mandal vs Benimadhab Banerji 6
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
The Chief Presidency Magistrate in the complaint filed by respondent held that the second complaint was not unduly delayed that section 203 is not a bar to the second complaint and that the 355 complaint was not with a view to blackmail the persons accused
On the merits he held that the minutes of the proceedings of January 16 1948 were typed on a sheet of paper with Telephone No City 6091 and the City Exchange case into existence later in the year and that on his comparing the signatures of N R Sarkar it appeared that the signature was a forgery
He said And governing myself by this test I held that forgery is there prima facie and only prima facie
 These then were to facts on which the learned Presidency Magistrate Mr B Mukherjee came to a conclusion different from that of his predecessor Mr Chakravorti who had inquired into the complaint of Pramode Ranjan Sarkar as to the forged nature of the signatures of Mr N R Sarkar
Taking first the question of fresh evidence the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is in our opinion a correct view of the law
It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on
That in our opinion is not a correct view of the law
The next point to be considered is was the mention of the telephone number City 6091 on the note paper on which the resolution was typed a matter of which the previous complainant Pramode Ranjan Sarkar was unaware and was it a fact which with reasonable diligence he could not place before the Magistrate
In the complaint filed by Pramode Ranjan Sarkar no reference was made to the City Exchange
It is true that the question was sought to be raised as a fresh piece of evidence before Debabrata Mookerjee J and it was not 356 considered by him but it was not stated before him when the then complainant came to know of this fact
According to a copy of the Day Book entry by Mr Bimal Chandra Chakravarty Solicitor for the previous complainant Pramode Ranjan Sarkar dated October 13 1953 photostat copies were taken of the share transfer deed and portions of the agreement dated January 19 1948 and inspection of the Minutes Book was also taken but the request of the complainant to take photostat copies of certain resolutions was refused by the appellant section M Basu
It is significant that according to this entry Santi Ranjan Sarkar was acting as the agent of Pramode Ranjan Sarkar and was present at the time of the inspection
After this inspection was taken Pramode Ranjan Sarkar discussed with his Legal Advisers the peculiarities noted in the impugned documents
This is what he Pramode Ranjan Sarkar stated as a witness before the Chief Presidency Magistrate
His evidence also shows that he inspected the Minutes Book though after much recriminations Witness Shibakali Bagchi stated that Minutes Book of N R Sarkar  Co Ltd was examined by him and that it appeared to him that the book was not genuine and Pramode Ranjan Sarkar complained that some of the signatures were forged
It appears from the statement of Pramode Ranjan Sarkar that the appellant section N Basu did not let them take photographs of some of the pages of the Minutes Book
It is not stated by either Bagchi or Pramode Ranjan Sarkar of what documents they wanted to take photographs which were refused
In the statement of Bimal Chandra Chakrabarty the Solicitor the same statement is made i e they wanted to take photographs of some documents which were not allowed to be taken
The correspondence produced by Pramode Ranjan Sarkar in his complaint proceedings shows that the Minutes Book was produced for his inspection and was inspected
Debabrata Mookarjee J in dealing with the 357 resolution of January 16 1948 said that it was not possible on the materials available considered prima facie that the Magistrate s finding suffered from such a grave impropriety as to require interference by the Court
He was of the opinion that the complainant could not have been unaware of the resolution of January 16 1948
This he concluded from the following that on his own case Pramode Ranjan managed the affairs of the Company along with the appellant P N Taluqdar that although the proceedings of the Board dated September 22 1953 referred to the resolution of January 16 1948 yet the only protest made against it by Pramode Ranjan Sarkar was the alleged legal difficulties consequent on renewal of the appointment but its genuineness was not then questioned and it was questioned for the first time on March 17 1954 when the complaint was lodged
Against the judgment and order of Debabrata Mookerjee J Special Leave to appeal to this Court was obtained and one of the points taken in the application was that the resolution was typed on a sheet of paper bearing Telephone No City 6091 although this Telephone Exchange did not come into existence till December 28 1948
It is significant that Pramode Ranjan Sarkar did not mention when he came to know about the existence of this new fact
It was not therefore made clear to the learned Judge at least upto that stage as to when before or after the filing of the first complaint Pramode Ranjan Sarkar came to know about the existence of this piece of evidence to which so much importance is attached
Debabrata Mookerjee J also said in his judgment that the affairs of the Company were managed by Pramode Ranjan Sarkar and the appellant P N Taluqdar and that it was difficult to believe that he Pramode Ranjan had no access to the Minutes Book which showed that he himself 358 had presided over several meetings and also that there was nothing extraordinary about the proceedings being typed on separate sheets of paper and the sheets of paper being pasted in that Minutes Book because on some of them there were his own signatures and it was difficult to believe that tampering with the records went on systematically for several months without Pramode Ranjan Sarkar having seen the book or detected the tampering
It was therefore impossible to blame the previous Chief Presidency Magistrate if he held in those circumstances that there was no forgery in the Minutes Book or tampering with it
The following passage from the learned Judge s judgment is significant Photographs of the impugned documents were taken on the 13th October when the Minutes Book was inspected
On the last mentioned date the complainant was certain about the entire book having been tampered with but nothing appears to have been said about it no challenge made no protest entered until full five months passed when at last the silence was broken and the complaint was lodged on the 17th March 1954
It is of course not known what was said about it in the information to the police
These circumstances are explicit in the complainant s case
That case has only to be presented for these features to be seen and the Magistrate could not possible have overlooked them
His clear finding is that the Minute Book is genuine
I am not in a position to say it is improper on a prima facie consideration of the evidence offered
 Dealing with the question whether the signatures of N R Sarkar were forged the learned Judge agreed after considering the whole evidence that the signatures were not forged
359 The complaint of the present complaint Saroj Rajan Sarkar specifically mention the City Exchange and that it came into existence later
He also alleges that this fact was not known to the previous complaint Pramode Ranjan Sarkar and in support there is the affidavit of Santi Ranjan Sarkar
Significantly enough in that affidavit also it is not stated as to when the deponent came to know about this alleged new fact of the Telephone City Exchange
All that the affidavit says is that it is a matter of history and was published in the Statesman of December 29 1948
There is no evidence on the record to show as to when the matter of City Exchange came to be known to the persons who were then and two those who are now prosecuting the criminal complaints
The document which we have referred to above ie the letter written by the Solicitor dated October 13 1953 shows that Santi Ranjan Sarkar was present as agent of Pramode Ranjan Sarkar at the time of the inspection
The complaint filed by Saroj Ranjan Sarkar states That with great difficulty the documents in question were inspected certified true copies of the alleged resolutions of the Board meetings were obtained and photostatic copies of material portions including alleged signatures of late Sri Sarkar on the said Deed of Agreement and on the Deed of Transfer could be obtained as will appear from correspondence in this respect
 In the complaint filed by Pramode Ranjan Sarkar exactly the same language was used in paragraph 10 of the previous complaint
If certified copies were obtained by the complainant Pramode Ranjan Sarkar and inspection was taken by Santi Ranjan Sarkar for Pramode Ranjan Sarkar and by his Solicitor and the facts are as they are 360 stated above it is difficult to hold that the fact in regard to the City Exchange was not know to the complainant in the first complaint and was a new fact which could not with reasonable diligence be adduced by him
The next question which arises is whether the order of the previous Chief Presidency Magistrate who decided Pramode Ranjan s complaint was manifestly absurd or unjust and resulted in a manifestly unjust order
The Special Bench of the High Court has held that it was so because 1 the Magistrate ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of the late Mr N R Sarkar 2 he set aside the report of the enquiring Magistrate Mr AB Syam for reasons which cannot be held to be proper and judicial reasons 3 He said in his order that Mr N R Sarkar might himself have ante dated the documents thus accepting a possible defence for which there was no basis before him and 4 he relied upon his own comparison of the disputed signatures of Mr N R Sarkar
On these grounds the Special Bench was of the opinion that the decision of the first Magistrate was rather arbitrary and so resulted in manifest miscarriage of justice
The question is whether Mr N C Chakrabarti the previous Presidency Magistrate had applied his mind to the evidence which was produced before him and keeping in view his functions as a Magistrate he gave his decision
It is not necessary to refer to the various findings given by him
Thy are set out and considered in the judgment of Debabrata Mookerjee J and he that learned Judge has commented upon all the infirmities in that order which were brought to his notice
The previous Chief Presidency Magistrate found that the Deed of Agreement dated January 19 1948 was not a forged document
He referred 361 to the evidence without analyzing it
He said that the complainant examined persons who know the signature of the late Nalini Ranjan Sarkar and they deposed as to the manner in which Nalini Ranjan Sarkar used to sign
After making a reference to the gist of the evidence submitted before him and to the report of Mr A B Syam Presidency Magistrate he the learned Chief Presidency Magistrate came to the conclusion For the reasons above I find that the evidence on handwriting including the opinion of the Handwriting Expert does not support the complainant s version
 Again in a later part of his order he found that the resolution of the Board of Directors dated January 16 1948 also was not forged and that the endorsement of the appellant section M Basu was nothing more or less then the authentication of the common seal of the Co and he therefore agreed with the finding of Mr AB Syam that there was no case against section M Basu appellant but disagreed with him in regard to the other appellant P N Talukdar
When the matter went to the High Court Debabrata Mookerjee J first considered as to when the revisional power of Court to interfere should be exercised
Then he discussed the seven circumstances which were relied upon by the then complainant Promode Ranjan Sarkar in support of the allegations of forgery
After dealing with these various points raised he held It may be that one or two items of evidence were not specifically referred to in the Order but that does not necessarily imply that those items of evidence were not present to the mind of the Magistrate
After all a Magistrate is only required to record briefly his reasons for dismissing 362 a complaint
The Magistrate s order I think is fairly well
 The learned Judge then discussed the question of delay and held that Pramode Ranjan Sarkar had considerably delayed the bringing of the complaint
He also held that the Deed of Agreement which was alleged to be a forgery had not been so proved and he gave various reasons one of them being that at the meeting of the Board of Directors dated September 22 1953 the then complainant did not oppose the renewal on the ground that the Agreement was forged or did not exist but on legal grounds
Then the learned Judge referred to the correspondence which had passed between the then complainant Pramode Ranjan Sarkar and the appellant PN Talukdar and said It is therefore clear that the evidence which the complainant offered in support of his case contained prima facie on the first aspect sufficient materials for distrusting the truth of the story and I cannot see how the Magistrate s order can be challenged in revision on the ground of impropriety as respects the Deed of Agreement
The learned Judge then referred to other aspects of the case ie the evidence of the Deputy Controller of Stationery PW 15
He also referred to finding of the previous Chief Presidency Magistrate that it was difficult to believe that the complainant should have been unaware of the resolution of January 16 1948 and after referring to all these various questions raised he dismissed the petition
Can it be said in these circumstances that there has been a manifest error resulting in the passing of an unjust order  That in our opinion has not been made out
The order of Debabrata Mookerjee J who reviewed the findings of the previous Chief Presidency Magistrate shows that the criticism that that the learned Magistrate did not 363 consider the whole evidence is not justified
Taking the evidence into consideration he came to the conclusion that there was no ground to proceed and therefore refused to issue process
In his opinion the evidence was not worthy of credit and he was not satisfied with the correctness of the complaint and dismissed it as he was entitled to do on those findings
See Gulab Khan vs Gulam Mohammad Khan 1 which was approved in Vadilal Panchal v Dattatraya Dulaji Chadigaonker2
In the circumstances the order made by the previous Chief Presidency Magistrate was not any manner manifestly absurd unjust or foolish nor can it be said that the Magistrate ignored in any principles which were necessary to apply under sections 202 and 203 of the Criminal Procedure Code nor is the order contrary to what was said in Ramgopal Ganpatrai Ruia vs State of Bombay 3
That was a case in which the rule in regard to the commitment proceedings and the power of the Committing Magistrate to commit was discused and the expression sufficient grounds in sections 209 210 and 213 of the Code of Criminal Procedure was interpreted
That was not a case dealing with the powers of the Magistrate under sections 202 and 203 which was specifically raised and decided in Vadilal Panchal s case 3
In Ramgopal Ganpatrai Ruia s case 3 the following observations of Sinha J as he then was in regard to the expression sufficient grounds are pertinent The controversy has centred round interpretation of the words sufficient ground occurring in the relevant sections of the Code set out above
In the earliest case of Lachman vs Juala All 161 decided by Mr Justice Mahmood in the Allahabad High Court governed by section 195 of the Criminal Procedure Code of 364 1872 Act No X of 1872 the eminent judge took the view that the expression sufficient grounds has to be understood in a wide sense including the power of the magistrate to weigh evidence
In that view of the matter he ruled that if in the opinion of the magistrate the evidence against the accused cannot possibly justify a conviction there was nothing in the Code to prevent the Magistrate from discharging the accused even though the evidence consisted of statements of witnesses
who claimed to be eye witnesses but whom the magistrate entirely discredited
He also held that the High Court could interfere only if it came to the conclusion that the Magistrate had committed a material error in discharging the accused or had illegally or improperly underrated the value of the evidence
Thus he overruled the contention raised on behalf of the prosecution that the powers of the committing Magistrate did not extent to weighing the evidence and that the expression sufficient ground did not include the power of discrediting eye witnesses
Though the Code of Criminal Procedure was several times substantially amended after the date of that decision the basic words sufficient grounds have continued throughout
That decision was approved by a Division Bench of the Bombay High Court In re Bai Parvati Bom
163 and the observations aforesaid in the Allahabad decision were held to be an accurate statement of the law as contained in section 201 of the Code as it now stands
The High Court of Bombay held in that case where the evidence tendered for the prosecution is 365 totally unworthy of credit it is the duty of the Magistrate to discharge the accused
It also added that where the magistrate entertains any doubt as to the weight or quality of the evidence he should commit the case to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence Debabrata Mookerjee J in the revision against the order of the previous Chief Presidency Magistrate accepted the finding of that Magistrate in regard to the delay
The present complaint out of which this appeal has arisen was filed after the appeal in this Court arising out of this complaint was withdrawn by Pramode Ranjan Sarkar
Can it be said that this is not an abuse of the process of tho Court one brother who was a director of the Company and who would be interested in the Managing Directorship of the Company and the resolutions passed in regard to that office brought a complaint in 1954 which was dismissed both by the Magistrate and the High court
Appeal against the order of dismissal brought in this court was withdrawn on March 12 1959
It was alleged in his complaint by Pramode Ranjan Sarkar that the present respondent was celluding with appellant P N Talukdar who had offered his some kind of monetary inducement and that fact was deposed to by the present respondent himself as a witness in the previous complaint
He waited all this time although he knew about the forged signatures of his late brother on various documents and after at least the lapse of five years he brought a fresh complaint on the same facts
Neither he has disclosed as to when he came to know about the City Exchange nor have Santi Ranjan Sarkar and Pramode Ranjan Sarkar which cannot therefore be said to be a fact which could not with reasonable diligence be adduced at the time of the previous complaint
366 The argument that this Court gave Special Leave in the case of Pramode Ranjan Sarkar and therefore there were points of importance is in the circumstances of this case a neutral circumstance and that fact cannot be used as a point in favour of the respondent
In these circumstances we are of the opinion 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
In regard to the power of reference to a larger Bench we are in agreement with section K Das J and in the circumstances it is unnecessary to express an opinion as to the applicability of section 196A Criminal Procedure code to the facts of this case
For these reasons we allow the appeals set aside the order of the High Court and of the learned Chief Presidency Magistrate and dismiss the complaint
BY COURT In accordance with the judgment of the majority the appeal is allowed
Appeal allowed


Summary:
On March 17 1954 Promode Ranjan a brother of N R Sarkar filed a complaint under section 200 Code of Criminal Procedure against Pramathanath and section M Basu alleging offences punishable under sections 467 471 and 109 of the Indian Penal Code before the Chief Presidency Magistrate in respect of a document appointing Pramathanath as the Managing Director of N R Sarkar  Co and the minutes of the Board meeting resolving the same
It was alleged therein that the signatures of N R Sarkar on those documents were forgeries
After considering the evidence of the Handwriting Expert the Magistrate dismissed the complaint
Promode Ranjan preferred a revision petition to the High Court
The High Court dismissed the revision Petition
By an application dated January 6 1956 when the revision petition was pending attention of the High Court was drawn to the fact that the minutes dated January 16 1948 had been typed on a letter bearing at the top in print Telephone City 6091 where as the City Exchange had not come into existence till December 1948
The Supreme Court granted special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn
On April 3 1959 Saroj Ranjan another brother of NR Sarkar laid a complaint on the same facts and allegations 298 against the appellants in addition alleging the further fact about the City Exchange in support of the allegation that the minutes were forged dishonestly and fraudulently and used as genuine
Neither in this complaint nor before the High Court had it been stated as to when it came to be known that on the purported date of the minutes the City Exchange was not in existence
The Presidency Magistrate issued process against the appellants
The appellants went up in revision to the High Court
The matter was first heard by a Division Bench and was later referred to a larger Bench of three Judges which dismissed the revision petition
In these appeals on special leave it was contended by the appellants that the second complaint ought not to have been entertained that the constitution of the special Bench was illegal and that as the complaint alleged criminal conspiracy sanction under section 196A of the Code of Criminal Procedure was required
 Held that the enquiry contemplated by sections 200 to 204 Code of Criminal Procedure is for the purpose of enabling the Magistrate to find out if sufficient grounds exist for issuing process
Vadilal Panchal vs Daltaraja Dulaji Chandigaonkar  Gulab Khan vs Gulab Mohammad Khan AIR 1927 Lah
30 and Ram Gopal Ganpat Ruia vs State of Bombay referred to
Per section K Das J
The law does not prohibit altogether the entertainment of a second complaint when a previous complaint on the same allegations has been dismissed under section 203 of the Code of Criminal Procedure
But a second complaint containing more or less the same allegations can be entertained only in exceptional circumstances
It is not possible nor desirable that the exceptional circumstances must be stated with particularity or precision
Generally speaking the exceptional circumstances may be classified under three categories 1 manifest error in the earlier proceeding 2 resulting 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
Where the previous order of dismissal was passed on an incomplete record or on a misunderstanding of the nature of the complaint a second complaint may be entertained
Where a Magistrate misdirects himself as to the scope of an enquiry under s 202 Code of Criminal Procedure and the mistake made gives a wrong direction to the whole proceeding on the first complaint the order of dismissal passed thereon would be due
to a manifest error resulting in a miscarriage of justice
In such a case a second complaint is entertainable
299 Per Kapur and Hidayatullah JJ
There is no legal bar to the entertainability of a second complaint
It is only when the Magistrate had misdirected himself with regard to the scope of the enquiry under section 203 Code of Criminal Procedure or has passed an order misunderstanding the nature of the complaint or the order is manifestly unjust or absurd or the order is based on an incomplete record can it be said that there is such a manifest error or a manifest miscarriage of justice that a second complaint on the same allegations may be entertained
The other exceptional circumstances in which a second complaint may be entertained is when it is supported by fresh and further evidence
Case law referred to
In the case of fresh evidence it must be such as could not have been with due diligence on the part of the complaint adduced on the earlier occasion
Queen Empress vs Dole Gobinda Das ILR  Dwarkanath Mandal vs Daniradha banerjee ILR disapproved
Allah Ditta vs Karam Bakshi Ram Narain Chowdhary vs Punachand Jain AIR 1949 Pat 255 Hansabai vs Ananda AIR 1949 Bom
384 and Doraiswami vs Subramania A I R  approved
In the present case permitting the second complaint to proceed would be a gross abuse of process
Held further concurring with SK Das J that the Special Bench was properly constituted
Per section K Das J
On the first complaint the Presidency Magistrate had misdirected himself regarding the scope of the enquiry under sections 203 and 204 of the Code of Criminal Procedure and it was a manifest error
The facts about the City Exchange urged and fresh evidence were decisive of a prima facie case for issuing process and it was an exceptional circumstance justifying entertaining the second complaint and not to permit the trial of the case in such circumstances would be a denial of justice
Kumariah vs C Naicker AIR 1946 Mad 167 and Ramanand vs Sheri ILR 1 56 All 425 referred to
Though Chapter II of the Rules of the High Court Appellate Side in terms applies to Civil cases their substance could be applied to criminal cases by the Chief Justice in constituting a larger bench
The substance of the allegations in the complaint amounted to an offence of abetment by conspiracy under 300 section 107 Indian Penal Code and not the offence of Criminal Conspiracy as defined by section 120A and therefore sanction under section 196A of the Code of Criminal Procedure was not necessary
The distinction between the two offences lies in that the first requires an overt act in pursuance of the agreement whereas the second makes the agreement to do the unlawful act itself punishable
Basirul Hag vs State of West Bengal and Mulachy vs The Queen  referred to