IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 395 of 1996 For Approval and Signature: Hon'ble MISS JUSTICE R.M.DOSHIT ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KAMALKISHORE BHAIRAVNATH MISHRA Versus AMANKUMAR BHAIRAVNATH MISHRA -------------------------------------------------------------- Appearance: MR BA SURTI for Petitioner MR JB PARDIWALA for Respondent No. 1 MT ST MEHTA Ld. APP for Respondent No. 5 -------------------------------------------------------------- CORAM : MISS JUSTICE R.M.DOSHIT Date of decision: 28/09/2000 ORAL JUDGEMENT This criminal revision application arises of the order dated 18th September, 1996 made by the learned Judicial Magistrate First Class, Pardi in Criminal Case No. 4 of 1996. The petitioner before this Court is the complainant ( hereinafter referred to as "the complainant"). On 7th February, 1996 the complainant lodged a complaint before the learned Judicial Magistrate First Class, Pardi against four persons in respect of the sale of his property situated at village Dugara. It was alleged that the complainant was the owner of non-agricultural land being plot no. 4 of survey no. 376 situated at village Dugara and the building constructed on it. The accused no. 1 and 2 were the real brothers of the complainant and had on 1st March, 1993 prepared a sale-deed in their favour in the name of the complainant and got it registered in the office of the Sub-Registrar at Pardi in respect of the above referred land and buildig. It was, therefore, alleged that the accused committed an offence punishable under sections 465, 467, 468, 471 and 114 IPC. It was stated that earlier in respect of the said document, the complainant had lodged a complaint which was registered as Criminal Case No. 27/1994, however, before the completion of the investigation, he had given a pursis to withdraw the said complaint and accordingly, the said complaint was withdrawn. Upon presentation of the above referred complaint, the learned Magistrate recorded the evidence of the complainant and three other witnesses under sec. 202 CrPC. Considering the evidence led by the complainant the learned Magistrate was of the opinion that no case was made out against the accused persons, and in exercise of powers under section 203 CrPC by impugned order dated 18th September, 1996 dismissed the complaint. Feeling aggrieved, the complainant has preferred the present petition. Mr. Surati has submitted that the complainant had not only led his own evidence but he had also led the evidence of one advocate in whose presence the disputed document was prepared and executed. The learned Magistrate has not considered the evidence of the advocate Shri Shailesh Mehta. He has submitted that the learned Magistrate ought to have considered the evidence of learned advocate Shri Shailesh Mehta and also have issued process against the accused persons. In support of his argument, he has relied upon the judgment of the Hon'ble Supreme Court in the matter of Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430. Mr. Pardiwala has submitted that earlier in the same subject matter, the complainant lodged the complaint in the month of February, 1994 which was registered as Criminal Case No. 27/1994 in which an investigation by police was ordered under sec. 156(3) CrPC, however, before the police could complete the investigation, the complainant went before the Court and presented a pursis to withdraw the complaint and, accordingly the said complaint stood disposed of. The second complaint in the same subject matter would not be maintainable unless some special circumstance is made out. In the present case, no such circumstance has been made out for which the second complaint ought to have been entertained. He has relied upon the judgment of the Bombay High Court in the matter of Hansabai v. Ananda Ganuji Payagudi, AIR 1949, Bombay, 384, and in the matter of Praamatha Nath Talukdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876, and in the matter of Bindeshwari Prasad Singh vs. Kali Singh (1977) 1 SCC 57, and in the matter of Maj. Genl. A.S. Gauraya & Anr. vs. S.N. Thakur & Anr., (1986) 2 SCC 709. In the matter of Chandra Deo Singh (supra) the Hon'ble Supreme Court has held that "for determining the question any process is to be issued or not, what the Magistrate has to be satisfied is whether "there is sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry." In the matter of Hansabai (Supra), the Bombay High Court has held that "while there is nothing in law against the entertainment of a second complaint on the same facts on which a person has already been discharged after consideration of all the evidence produced by the complainant, the Magistrate cannot be said to have sufficient ground for proceeding with the complaint within the meaning of S. 203, unless he is satisfied that some additional evidence is forthcoming, of which the complainant was not previously aware or which it was not within his power to produce in the previous trial, or that there has been manifest error apparent on the face of the record or manifest miscarriage of justice." In the matter of Pramatha Nath Talukdar (supra), the Hon'ble Supreme Court has held that "any order of dismissal under Sec. 203 CrPC, has, 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 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." The Court further held that "taking first 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 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 law." In the matter of Bindeshwari Prasad Singh (Supra), the Hon'ble Supreme Court has held that the magistrate has no power to review or recall an order passed by him dismissing the complaint under sec. 203 CrPC. The same is the view expressed by the Hon'ble Supreme Court in the matter of Major General A.S. Gauraya & Anr. (supra). It appears that in support of his complaint, the complainant examined himself and three other witnesses, one of them being the clerk in the office of the Sub-Registrar and one another advocate in whose presence the document is alleged to have been prepared and executed. The said witness has deposed that at the relevant time, he was reading in the chamber of one advocate Pravinbhai Shah. The accused had approached the said advocate Shri Pravinbhai Shah and under the advise of said advocate Shri Pravinbhai Shah, the document in question was prepared and got registered in the office of the Sub-Registrar, Pardi. It was the accused no. 1 who had signed in the name of the complainant as Vendor and had also appeared before the Sub-Registrar as Vendor and had verified the signature before the Sub-Registrar as Vendor. It is well settled law that at that stage the learned Magistrate was required to consider whether there was sufficient evidence to proceed against the accused without examining the veracity of the statement made before him. In the present case, I find that the evidence of the advocate Shri Shailesh Mehta has not been considered by the learned Magistrate at all and without considering the evidence of said witness, the learned Magistrate has held that no offence has been made out against the accused. The approach of the learned Magistrate is clearly in violation of the procedure laid down in sections 201 to 203 CrPC. The complaint could not have been dismissed without considering the entire evidence placed before the learned Magistrate. Whether the second complaint in the same subject matter was maintainable or not has not been examined by the learned Magistrate. In the matter of Pramatha Nath Talukdar (supra) the Hon'ble Supreme Court has held that such a second complaint would be maintainable if some special circumstance is made out. In the matter before the Hon'ble Supreme Court, it was the case where the earlier complaint was considered and after examining the evidence placed before the Magistrate, the learned Magistrate had dismissed the complaint under sec. 203 CrPC. As it is held in the judgment referred to hereinabove, there is no ban against receiving a complaint even where earlier complaint in the same subject matter was dismissed. However, in case where enquiry was made into the first complaint and after considering the evidence on record the magistrate dismissed the complaint, the second complaint should not be entertained unless some special circumstance exists. Apparently, those are not the facts here. The first complaint admittedly was never examined by the learned Magistrate on merits. In fact, the same was withdrawn even prior to the completion of the investigation into the said complaint. It, therefore, cannot be said that the earlier complaint was dismissed by the learned Magistrate after considering the materials placed before him. In my view, therefore, it would not be right to say that the second complaint filed by the petitioner in the same subject matter would not be maintainable even though he had withdrawn first complaint lodged by him being Criminal Case No. 27/1994. What was the circumstance for which the earlier complaint was withdrawn is not brought on the record of the matter, but as I have held hereinabove the first complaint having been withdrawn before the completion of the investigation into it and before the learned Magistrate had an occasion to examine it on merits, the circumstance in which it was withdrawn would not be relevant for deciding whether the second complaint in the same subject matter would be maintainable or not. In my view, the learned Magistrate has grossly erred in not considering the entire evidence and the material placed before him and in dismissing the complaint relying on the selective materials alone. For the aforesaid reasons, the revision application is allowed. The impugned order dated 18.9.1996 made by the learned Judicial Magistrate First Class, Pardi in Criminal Case No. 4/1996 is quashed and set aside. The learned Magistrate shall proceed further with the said complaint in accordance with law. The Registry will return the Records and Proceedings forthwith. Rule made absolute. ********** mandora/