HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED ON 06.11.2019 DELIVERED ON 15.11.2019 Court No. 16 Case :- U/S 482/378/407 No. - 1253 of 2016 Applicant :- [ENTITY] Opposite Party :- [ENTITY] And Anr. Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- Govt. Advocate, [ENTITY] Hon'ble [ENTITY],J.
Heard Sri [ENTITY], learned counsel for the applicant, learned AGA for the State and perused the material available on record.
The present application 482 [ACT] has been filed challenging the summoning order dated 18.10.2018 passed in [CASE NUMBER] as well as the revisional order dated 23.12.2015 passed in [CASE NUMBER].
The allegations in brief leading to the filing of the present application are:
That the applicant is the proprietor of M/s [ENTITY] and is dealing in firearm at Raebareli. The father of the opposite party no. 2 was the owner of pistol and had a licence, as he was involved in a criminal case, the same was deposited with the firm of the applicant. The father of the opposite party no. 2 sold the said Pistol No. 1680 for a consideration of Rs. 30,000/- in the year 1996 as his licence had been cancelled, however, the sale was actually effected with the permission from the District Magistrate vide order dated 10.11.2000 on 31.5.2001.
The opposite party no. 2 moved an application under [SECTION] [ACT] on 21.4.2012 with the allegation that after the death of her father on 24.4.2011, when the opposite party no. 2 went to enquire about the pistol, she was informed that the same had been sold by her father. The said application filed by the opposite party no. 2 under [SECTION] [ACT] was registered as [CASE NUMBER] by the CJM who called for reports from the Police Station concerned and the District Magistrate/Licensing Authority. The City Magistrate submitted a report that the requisite permission was granted by the District Magistrate for the sale of the weapon on 10.11.2000 and the weapon was actually sold by the holder [ENTITY] on 31.5.2001. After considering the reports, as called for, the learned CJM rejected the application filed by the opposite party no. 2 vide order dated 14.6.2012 (Annexure3 to the application), the said order attained finality and was not challenged.
The opposite party no. 2, without disclosing the earlier order passed by the CJM, filed a fresh complaint levelling the same allegations vide complaint dated 4.7.2012 under [SECTION] [ACT] The CJM taking cognizance of the offence as disclosed in the complaint dated 4.7.2012 registered the case as [CASE NUMBER] and proceeded to record the statements under [SECTION] and [SECTION] [ACT] and proceeded to summon the applicant under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] vide order dated 18.10.2018 (Annexure6 to the application).
The applicant challenged the said summoning order by filing a [CASE NUMBER] disclosing the entire facts including the fact that the complaint on same allegation had already been rejected and was concealed in the present proceedings, the revision was dismissed vide order dated 23.12.2014.
Sri [ENTITY], learned counsel for the applicant, has strenuously argued that the proceedings initiated vide [CASE NUMBER] were nothing but an abuse of process of law and were not maintainable in view of the fact that the earlier complaint had been rejected vide order dated 14.6.2012 on the same allegations. He has further argued that the complaint deserves to be quashed for the reason that it discloses that no offence under the sections under which the applicant was summoned. He placed reliance upon the judgement of the Apex Court in the case of [PRECEDENT]. He has further argued that the second complaint was barred by the principles of res judicata which are in the nature of a public policy. He placed reliance upon the decision in the case of [PRECEDENT]. He further argued that after the dismissal of the application under [SECTION] [ACT], on merits, a fresh complaint for the same action, is not maintainable as it does not fall within the exceptional circumstances, as laid down and explained by the Hon'ble Apex Court in the case of [PRECEDENT]. He lastly submits that the proceedings of summoning order and the revisional order are liable to be quashed as being an abuse of process of law.
The copy of the complaint, statement recorded under [SECTION] [ACT] and [SECTION] [ACT] are on record. It is essential to record that the weapon in question is a 32 bore pistol which is prohibited bore and cannot be held without licence.
A perusal of the complaint reveals that the opposite party no. 2 had alleged that after the death of her father when she contacted the applicant she was informed that the pistol had been sold to the applicant for Rs. 30,000/- by the father in the year 1996 and the permission for the said sale was granted in the year 10.11.2000, as such, it is clear that the documents of 1996 were prepared by committing forgeries. In para 10 of the complaint, it was specifically stated that a complaint in that regard was made to the Superintendent of Police vide application dated 31.3.2012, however, no action was taken. It is relevant to note that there were no disclosure of the earlier order dismissing the complaint of the opposite party no. 2 on the same allegation. In the statement recorded under [SECTION] [ACT] also it was specifically stated that the opposite party no. 2 does not have the requisite licence to hold the prohibited bore pistol and she wants to sell the same or give it to the Government, there is no averment with regard to the earlier proceedings.
The counsel for the respondent has filed a counter affidavit bringing on record an affidavit of [ENTITY] dated 13.4.1996, which is alleged to be a forged document wherein he has deposed that the deponent shall obtain the requisite permission and sell the same by giving possession to the applicant herein. It is also admitted that amount of Rs. 30,000/- was received by the deponent, it was also deposed that in the event of not being able to obtain the requisite permission, an amount of Rs. 50,000/- shall be refunded.
It is also contended that the sale and the affidavit was said to be executed on 15.4.1996 whereas the permission regarding the sale of pistol was granted on 10.11.2000 which clearly reveals that the sale receipt and the affidavit were prepared for undue advantage. He further argued that the second complaint with regard to the same incident is not prohibited placing reliance on the judgement of in the case of [PRECEDENT].
On the basis of the material on record and the arguments advanced, the sole question to be considered is whether the complaint and the statements recorded under [SECTION] and [SECTION] [ACT] reveal the commission of offence under the sections in which the applicant has been summoned and whether the second complaint for the same incident was maintainable without disclosure of the outcome of the first complaint and whether the same can be termed as abuse of process of law.
The Apex Court in the case of [PRECEDENT] considered the effect of dismissal of the first complaint on merit and its consequences on the second complaint. The Apex Court relying upon the earlier judgement in the case of [ENTITY] Talukdar and another vs. Saroj Ranjan Sarkar, (AIR 1962 SC 876) held as under:
"Almost similar questions came up for consideration before this Court in the case of [ENTITY] Talukdar and another vs. Saroj Ranjan Sarkar, (AIR 1962 SC 876). The majority judgment in [ENTITY] (supra) was delivered by Justice [ENTITY]. His Lordship held that an order of dismissal under [SECTION] of the [ACT] (for short `the Code') is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as (a) where the previous order was passed on incomplete record
(b) or on a misunderstanding of the nature of the complaint (c) or the order which was passed was manifestly absurd, unjust or foolish or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings. This Court made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In paragraph 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court such a course is not permitted on a correct view of the law. (para 50, page 899) This question again came up for consideration before this Court in [PRECEDENT]. There also this Court by relying on the principle in [ENTITY] (supra) held that there is no provision in the Code or in any other statute which debars complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under [SECTION] of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are `exceptional circumstances'. This Court held in para 12 if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in the filing a second complaint on the same facts. However if the dismissal of the complaint under [SECTION] of the Code was on merit the position will be different. Saying so, the learned Judges held that the controversy has been settled by this Court in [ENTITY] (supra) and quoted the observation of Justice [ENTITY] in paragraph 48 of [ENTITY] (supra):-
" An order of dismissal under [SECTION], [ACT], is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into "
Again in [PRECEDENT], a three Judge Bench of this Court considered this question in paragraph 19 at page 740 of the report. The learned Judges of this court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under [SECTION] of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In [PRECEDENT] (supra) this Court relied on the ratio in [ENTITY] (supra) and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in [ENTITY] (supra) were reiterated.
Therefore, this Court holds that the ratio in [ENTITY] (supra) is still holding the field. The same principle has been reiterated once again by this Court in [PRECEDENT]. In paragraph 14 of the judgment this Court expressly quoted the ratio in [PRECEDENT] (supra) discussed hereabove.
Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the application of the first complainant. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in [ENTITY] (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained."
In the present case, a perusal of the complaint and the order passed earlier rejecting the complaint makes it clear that the second complaint (under challenge in the present proceeding) is nothing but a mere repetition and nothing has been argued to demonstrate that any of the exceptional circumstances as enumerated in the judgement of [PRECEDENT] (supra) were available while filing the second complaint.
On this count alone and placing reliance on the judgement of [PRECEDENT] (supra) I have no hesitation in holding that the summoning order dated 18.10.2013 passed in [CASE NUMBER] as well as the revisional order dated 23.12.2015 are in ignorance the settled position of law and thus cannot be sustained and are quashed.
Consequently, the [CASE NUMBER], pending before the court of Additional Civil Judge (Junior Division)/Magistrate, Court No. 22, Raebareli is hereby quashed.
The application u/[SECTION] [ACT] is disposed off.
Let a copy of this order be sent to the court concerned for it being placed on record.
Order Date :- 15.11.2019 Puspendra