Criminal Procedure Code, 1973 -Second complaint on the same facts/Protest Petition

Criminal Procedure Code, 1973 -Second complaint on the same facts/Protest Petition

Head Note:

1.   Law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

2.   The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, is maintainable.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

Dr. B.S. CHAUHAN AND T.S. THAKUR, JJ.

Shiv Shankar Singh Vs. State of Bihar & Anr on November 22, 2011

CRIMINAL APPEAL NO. 2160 of 2011 

(Arising out of SLP(Crl.) No. 2768 of 2010) 

J U D G M E N T : Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the respondent no.2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called `IPC’) has been quashed.

2. Facts and circumstances giving rise to this case are that:

A.   A dacoity was committed in the house of present appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the appellant naming Ramakant Singh and Anand Kumar Singh alongwith 15 other persons under Sections 396/398 IPC. 

B.    However, Kameshwar Singh, the real brother of the appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156 (3) of the Code of Criminal Procedure, 1973, (hereinafter called `Cr.P.C.’). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property. 

C.    Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes. 

D.    After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 IPC etc. on 29.8.2005 against the appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein. 

E.    It was on 22.9.2005, the appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to respondent Anand Kumar Singh and others vide order dated 2.8.2008. 

F.     Being aggrieved, the respondent Anand Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the appellant ought to have pursued the first Protest Petition dated 4.4.2005. Hence, this appeal.

3. Shri Gaurav Agrawal, learned counsel appearing for the appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said ProtestPetition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate’s order of summoning the respondent No.1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty & Ors. v. The State & Anr., 1980 Crl. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside.

4. On the contrary, Shri Awanish Sinha and Shri Gopal Singh, learned counsel appearing for the respondents have vehemently opposed the appeal contending that the second petition was not maintainable and the appellant ought to have pursued the first Protest Petition. The High Court has rightly observed that the order of the Magistrate summoning the respondent No.1 and others was totally vague. Even otherwise, as the appellant himself had faced the criminal trial in respectof the same incident, he cannot be held to be a competent/eligible person to file the Protest Petition. He had purposely lodged the false FIR promptly after committing the offence himself. Therefore, the facts of the case do not warrant any interference by this court and the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

6. We do not find any force in the submission made on behalf of the respondents that as in respect of same incident i.e. dacoity and murder of Gopal Singh, the appellant himself alongwith others is facing criminal trial, proceedings cannot be initiated against the respondent No.1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State(Delhi Admn.), AIR 1979 SC 1791; Sudhir & Ors., v. State of M.P., AIR 2001 SC 826;T.T. Antony v. State of Kerala & Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash & Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).

7. Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty & Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Cr.P.C. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained.

8. The facts of the present case are completely distinguishable. Therefore, the ratio of the said judgment has no application in the facts of this case.

9. In Bhagwant Singh v. Commissioner of Police & Anr., AIR 1985 SC 1285, this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance ofthe Final Report to the extent that if no case was made out by the Magistrate, it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard.

10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432, this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out. Similarly, inPramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, this Court has held as under:

“An order of dismissal under Section 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other personshould be given another opportunity to have his complaint enquired into.” 

11. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy & Anr., AIR 2003 SC 702, this Court held as under:

“..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding….” 

In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar view has been re-iterated by this Court.

12. In Jatinder Singh & Ors. v. Ranjit Kaur,AIR 2001 SC 784, this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts. Similarly inRanvir Singh v. State of Haryana, (2009) 9 SCC 642, this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable.

13. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable.

15. The instant case is required to be decided in the light of the aforesaid settled legal propositions. Order dated 2.8.2008 passed by the Magistrate concerned is based on the depositions made by the appellant-Shivshankar Singh, and a very large number of witnesses, namely, Sonu Kumar Singh, Suman Devi, Nirmala Devi, Ganesh Kumar, Udai Kumar Ravi, Ram AchalSingh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr. Narendra Kumar. More so, the record of the Sessions Trial No. 866 of 2005, wherein the appellant himself has been put to trial was also summoned and examined by the learned Magistrate. Thus, the Magistrate further took note of the fact that for the same incident, trial was pending in another court. After appreciating the evidence of the complainant and other witnesses deposed in the enquiry, the learned Magistrate passed the following order :

“On the basis of aforesaid discussion, I find that there are materials available on the record to proceed against the accused person. A prima-facie case under Section 395 IPC has been made out against all the accused person of this case. O/c is directed to issue summons on filing of the requisite. Put up the record on 13.8.2008 for filing of the requisites.” 

16. The High Court without taking note of the aforesaid evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the Final Report was not competent. More so, the High Court without any justification made the following remarks:

“The Court can only record that the learned Judicial Magistrate has not conducted himself in a fair manner because he has intentionally left the impugned order vague as to which protest petition he was actingupon, so that advantage may accrue to Opposite Party No.2.” 

17. In our opinion, there was no occasion for the High Court to make such sweeping remarks against the Magistrate and the same remain unjustified and unwarranted in the facts and circumstances of the case.

18. In view of the above, the appeal succeeds and is allowed. The order impugned of the High Court is set aside and the order of the Magistrate is restored. Respondent No.1 is directed to appear before the Magistrate on 1.12.2011 and the learned Magistrate is requested to proceed in accordance with law. However, we clarify that any observation made in this judgment shall not adversely prejudice the cause of the respondent to seek any further relief permissible in law as the said observations have been made only to decide the controversy involved herein. 

Prevention of Corruption Act, 1988 – Section 19(4) – legality and validity of the sanction order

Head Note:-

Prevention of Corruption Act, 1988 - Section 19(4) - legality and validity of the sanction order - In a case where validity of the sanction order is sought to be challenged on the ground of non-application of mind, such challenge can be made in the course of trial.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos.2170-2171 OF 2011 

[ARISING OUT OF S.L.P. (CRL) NOS. 10278-10279 OF 2010] 

Dinesh Kumar        Vs.         Chairman, Airport Authority of India and Another

R.M. LODHA AND H.L. GOKHALE on NOVEMBER 22, 2011

J U D G M E N T : R.M. LODHA,J. 

1. Leave granted.

2. The appellant is being prosecuted for the offences punishable under Section 13(2) read with Sections 13(1)(d) and 13(1)(a) of the Prevention of Corruption Act, 1988 (for short, “P.C. Act”).

3. On November 4, 2009, the sanctioning authority granted sanction to prosecute the appellant for the offences indicated above. After the sanction order was challenged by the appellant in the High Court on November 26, 2009, the charge-sheet has been filed by the Central Bureau of Investigation (CBI) -respondent No. 2- against the appellant on November 30, 2009 in the Court of Special Judge, Ernakulam. Following that, summons came to be issued to the appellant on December 18, 2009. During the pendency of thematter before the High Court, wherein the sanction order has been challenged by the appellant, the Court of Special Judge has taken cognizance against the appellant.

4. The Single Judge of the High Court was not persuaded with the contentions raised by the appellant and dismissed the appellant's Writ Petition on July 19, 2010.

5. Against the order of the Single Judge, the appellant preferred an intra-court appeal. The Division Bench of the High Court dismissed the intra-court appeal on September 29, 2010 observing that it was open to the appellant to question the validity of the sanction order during trial on all possible grounds and the CBI could also justify the order of granting sanction before the Trial Judge.

6. Mr. Deepak Bhattacharya, learned counsel for the appellant referred to Section 19(4) of the P.C. Act and submitted that the appellant challenged the legality and validity of the sanction order at the first available opportunity, even before the charge-sheet was filed and, therefore, the Division Bench was not justified in relegating the appellant to agitate the question of validity of sanction order in the course of trial. He relied upon the decisions of this Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat,  (1997) 7 SCC 622; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. 1998 (5) SCC 749;Abdul Wahab Ansari vs. State of Bhar and another, (2000) 8 SCC 500 and State of Karnataka vs. Ameerjan, (2007) 11 SCC 273.

7. Mr. Deepak Bhattacharya, in view of the law laid down by this Court in the above decisions, submitted that the High Court ought to have gone into the merits of the challenge to sanction order. According to learned counsel, on its face, the sanction order suffers from non-application of mind.

8. On the other hand, Mr. H.P. Raval, learned Additional Solicitor General for the Central Bureau of Investigation – respondent No. 2- supported the view of the Division Bench. He submitted that in a case where validity of the sanction order is sought to be challenged on the ground of non-application of mind, such challenge can only be made in the course of trial. In this regard, he heavily relied upon a decision of this Court in Parkash Singh Badal and another vs. State of Punjab and others, (2007) 1 SCC 1. He also relied upon a recent decision of this Court in Ashok Tshering Bhutia vs. State of Sikkim, (2011) 4 SCC 402.

9. This Court has in Mansukhlal Vithaldas Chauhan considered the significance and importance of sanction under the P.C. Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.

10. The provisions contained in Section 19(1),(2),(3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and another.In paras 47 and 48 of the judgment, the Court held as follows:

“47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard. 

48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.” 

11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put inquestion, such issue has to be raised in the course of trial. Of course, inParkash Singh Badal, this Court referred to invalidity of sanction on account of nonapplication of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind – a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial.

12. In a later decision, in the case of Aamir Jaan, this Court had an occasion to consider the earlier decisions of this Court including the decision in the case of Parkash Singh Badal. Ameerjan was a case where the Trial Judge, on consideration of the entire evidence including the evidence of sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7,13(1)(d) read with Section 13(2) of the P.C. Act. However, the High Court overturned the judgment of the Trial Court and held that the order of sanction was illegal and the judgment of conviction could not be sustained. Dealing with the situation of the case wherein the High Court reversed the judgment of the conviction of the accused on the ground of invalidity of sanction order, with reference to the case of Parkash Singh Badal, this Court stated inAmeerjan in para 17 of the Report as follows:

“17. Parkash Singh Badal, therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case.” 

13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal and not unjustified.

14. Mr. Deepak Bhhatcharya submits that the appellant resides in Delhi and he would be put to grave hardship if the question of validity of sanction is left open to be decided in the course of trial as the appellant will have to remain present before the Trial Court at Ernakulam on each and every date of hearing. He, however, submits that if the personal appearance of the appellant is dispensed with, unless required by the Trial Court, the appellant will not be averse in raising the issue of validity of sanction before the Trial Judge.

15. Mr. H.P. Raval has no objection if a direction in this regard is given by us.

16. In view of the above contentions and the factual and legal position indicated above, we are satisfied that the impugned order does not call for any interference. Appeals are, accordingly, dismissed. However, it will be open to the appellant to raise the issue of invalidity of sanction order before the Trial Judge. In the peculiar facts and circumstances of the present case, appellant is permitted to appear before the Trial Court through his advocate. His personal appearance shall not be insisted upon by the Trial Court except when necessary.