1994 JTR(SC) 1099
1995 CriLR(Cal) 99 ; 1994 3 Crimes(SC) 849 ; 1995 1 EastCrC(SC) 49 ; 1994 7 JT 522 ; 1995 1 RLW(Raj) 115 ; 1994 4 Scale 823 ; 1995 1 SCC 1 ; 1995 SCC(Cri) 1 ; 1994 Supp5 SCR 274 ; 1995 1 UJ 216 ; 1995 KHC 1205
SUPREME COURT OF INDIA
Kuldip Singh & B.L. Hansaria, JJ.
State of Rajasthan - Appellant
versus
Aruna Devi & Ors. - Respondents
Criminal Appeal No. 761 of 1994
Decided on 8.11.1994
Counsel for the parties:
For the Appellant - Sh. Gupta.
For the Respondent - Sh. Francies.
IMPORTANT POINT
Dismissed of complaint u/s 203 Cr. P.C. is not bar to entertainment of a second complaint on same facts but that can be only in exceptional circumstances only when fresh evidence comes forward.
Act Referred :CRIMINAL PROCEDURE CODE : S.173(2), S.173(8)
(A) The Criminal Procedure Code sections 173(2) and 173(8) apply to this case, governing the procedure after a police report is submitted. Section 173(2) contemplates further investigation by the police after a final report, and section 173(8) provides for the submission of another report to the Magistrate based on such further investigation. The impugned order of the High Court was quashing the Magistrates cognizance after acceptance of a final report was challenged on the ground that no further investigation was permissible once a report had been accepted.
(B) Key legal principles include that a Magistrate can take cognizance of an offence after a further police report under sections 173(2) and 173(8), and that the lodging of a further report with fresh materials does not amount to entertaining a second complaint, which is permissible in exceptional circumstances.
Facts of the case:
A complaint was filed alleging that respondents conspired to transfer land using a forged special power of attorney. The Magistrate ordered investigation, a final report was submitted stating the complaint was false, accepted by the Magistrate, then the Superintend ent of Police ordered further investigation, a challan was filed under sections 420 and 467 IPC, and the Magistrate took cognizance. The High Court quashed the cognizance, which was challenged under Article 136.
Findings of Court:
The High Court erred in holding that the Magistrate had no jurisdiction to take cognizance after accepting the final police report, as sections 173(2) and 173(8) authorize further investigation and subsequent reporting. The appeal is allowed.
Issues:
Whether a Magistrate can take cognizance of an offence after a final police report has been accepted, and whether lodging a further report constitutes an impermissible second complaint.
Ratio Decidendi:
Sections 173(2) and 173(8) of the Code expressly permit further investigation and submission of another report, and a fresh complaint based on such report with new materials is not barred, so the High Courts quashing of cognizance was incorrect.
Result:
Appeal allowed; impugned judgment set aside.
(A) The Criminal Procedure Code sections 173(2) and 173(8) apply to this case, governing the procedure after a police report is submitted. Section 173(2) contemplates further investigation by the police after a final report, and section 173(8) provides for the submission of another report to the Magistrate based on such further investigation. The impugned order of the High Court was quashing the Magistrates cognizance after acceptance of a final report was challenged on the ground that no further investigation was permissible once a report had been accepted.
(B) Key legal principles include that a Magistrate can take cognizance of an offence after a further police report under sections 173(2) and 173(8), and that the lodging of a further report with fresh materials does not amount to entertaining a second complaint, which is permissible in exceptional circumstances.
Facts of the case:
A complaint was filed alleging that respondents conspired to transfer land using a forged special power of attorney. The Magistrate ordered investigation, a final report was submitted stating the complaint was false, accepted by the Magistrate, then the Superintend ent of Police ordered further investigation, a challan was filed under sections 420 and 467 IPC, and the Magistrate took cognizance. The High Court quashed the cognizance, which was challenged under Article 136.
Findings of Court:
The High Court erred in holding that the Magistrate had no jurisdiction to take cognizance after accepting the final police report, as sections 173(2) and 173(8) authorize further investigation and subsequent reporting. The appeal is allowed.
Issues:
Whether a Magistrate can take cognizance of an offence after a final police report has been accepted, and whether lodging a further report constitutes an impermissible second complaint.
Ratio Decidendi:
Sections 173(2) and 173(8) of the Code expressly permit further investigation and submission of another report, and a fresh complaint based on such report with new materials is not barred, so the High Courts quashing of cognizance was incorrect.
Result:
Appeal allowed; impugned judgment set aside.
ARUNESHVAR GUPTA, DUNGAR SINGH, V.J.Francis, V.SUBRAHMANYAM
JUDGMENT
Hansaria, J. - Special leave granted.
A complaint was field in the court of munsif and Judicial Magistrate, First Class, Bilara against the respondents under various sections of the penal code. The gravamen of the allegation was that the respondents had, in pursuance of a conspiracy, transferred some land on the strength of a special power of attorney bearing forged signature. The Magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by section 156(3) to the Code of Criminal, Procedure, 1973 (the Code). A case was registered thereafter by police and a final report was submitted on 18.7.1981 stating that complaint was false. The report came to be accepted by the Magistrate on 23.9.1981. It, however, so happened that the Superintendent of Police had independently order further investigation on 24.9.1981 and a challan came to be filed by police against the respondents, inter alia, under sections 420 and 467 IPC. The Magistrate took cognizance on 25.6.1984. A challenge was made to this act of the Magistrate before Sessions Judge, Jodhpur, who dismissed the revision. On further approach to the High Court, the revision was allowed order of cognizance was set aside. The State has come in appeal under Article 136 of the Constitution.
2. perusal of the impugned judgment of the High Court shows that it took the view that The Magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as section 173 of the Code permit further investigation in respect of an offence after a report under sub-section 2 has been submitted. Sub-section (8) also visualises forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard.
3. Shri Francis for the respondents, however, contends that the order of the Magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not pennissible in law. To substantiate the legal submission, we have been first referred to Pramathanath v. Saroj Ranjan1, in which a three judge Bench of this Court dealt with this aspect. A perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. Further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. In the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.
4. The case of Bindeshwari Prasad v. Kali Singh2, to which also has been referred by Shri Francis, has not really dealt with the point under consideration, as the legal question examined thereon was whether a Magistrate possesses inherent powers to review or recall any order passed by him. Of course, the order recalled in that case was also one of dismissing of complaint under section 203 on the ground of complainant being absent which showed that he had no interest in the matter.
5. The aforesaid being the position in law, we are of the view that the High Court erred in quashing the cognizance taken by the learned Magistrate. The appeal is, therefore, allowed by setting aside the impugned judgment. It would, however be open to the respondents, on the matter being further taken up by the Magistrate, to urge that no case against them has been made out, whereupon such order shall be passed by the Magistrate as deemed legal and just.
Appeal allowed.
1. 1962 (Supp) 2 S.C.R. 297.
2. 1977 (1) S.C.C. 57. (Distinguishable).
For Citation : (1995) 1 SCC 1 = 1995 SCC (Crl.) 1