MUNESHWAR PANDEY Vs. KHAGESH PANDEY

JUDGEMENT

(1.) This is an applicaion for setting aside the order of Mr. Shiva Priya, Magistrate, first class, Madhubani, dated the 21 st March, 1961, taking cognizance of a case under Sections 419, 420, 467 and 468, Indian Penal Code, against the petitioners in the following circumstances.

(2.) One Khagesh Pandey purporting to act as Manager of Mr. Babuan Kuer, Mr. Tara Devi and Bhagwati Prasad Pandey lodged an information at the Madhubani police station, alleging that the petitioners took one Mr. Surji to Darbhanga and obtained two documents, one being a bharna deed and the other an atainama, executed on behalf of Tara Devi relating to her properties. The police submitted charge sheet in that case on the 22nd of February, 1961, against the petitioners as also against Mr. Surji. Cognizance was taken by the learned Magistrate on receipt of the charge sheet in the case. Prior to the lodging of the first information report, Mr. Surji, alleged to have been induced to execute the two documents on behalf of Mt Tara Devi and to personate her, herself filed a petition of complaint before the learned Sub-divisional Magistrate, Madhubani, on the 28th of September, 1959, stating that the petitioners along with one Thakan Jha persuaded her to go to Darbhanga and execute the two documents in question in the name of Mr. Tara Devi. The learned Sub-divisional Magistrate before issuing summons referred the matter for enquiry to Mr. S.M. Kamal, Magistrate, 1st Class, Madhubani. The enquiring Magistrate, after he got the statements of the witnesses, submitted his report, dated the 4th of July, 1960, recommending that the complaint might be dismissed as, in his opinion, the entire case lodged by Mr. Surji was false and fabricated. The learned Magistrate, who was sub-divisional Magistrate in charge, acting upon the report of the enquiring Magistrate, dismissed the complaint under Section 203, Code of Criminal Procedure, on the 14th of July, 1960. In the case filed, however, by Khagesh Pandey, which was investigated by the officer-in-charge, Madhubani Police Station, charge sheet was submitted as mentioned above on the 22nd of February, 1961. The petitioners made an application in the case for fixing a date for hearing before any order could be passed taking cognizance of the case, but the learned Sub-divisional Magistrate in charge did not hear the petitioners, took cognizance and transferred the case to Mr. B. Prasad, Munsif-Magis-trate, for disposal. The petitioners have accordingly come to this Court for quashing of the order passed by the learned Magistrate taking cognizance after they had unsuccessfully moved the learned' Sessions Judge, Darbhanga, for the purpose.

(3.) Mr. Deva Kant Choudhary, appearing in support of the petition, has contended that the learned Magistrate had no jurisdiction to take cognizance on a perusal of the charge sheet submitted by the Madhubani Police when he had already dismissed the petition of complaint of Mt, Surji after considering the enquiry report of Mr. S.M. Kamal, Magistrate, and when the facts of the first information report by Khagesh Pandey were substantially identical with the facts of the petition of complaint filed by Mr. Surji, as they both related to the same alleged incident of the petitioners persuading Mt Surji to execute the documents in question on behalf of Tara Devi. He Concedes that there is no bar under the Code of Criminal Procedure to the Magistrate taking cognizance of an offence on a fresh complaint filed by the person aggrieved even if a prior complaint by him was dismissed by the same Magistrate. That jurisdiction, however, is to be exercised with caution; as it has been held in a series of decisions that, as a rule, a petition of complaint once filed having been dismissed, no cognizance should be taken on a fresh petition of complaint containing identical facts, and unless there is some fresh information available to the complainant after the institution of the petition of complaint already dismissed the learned Magistrate should not proceed to take cognizance of the case. In support of this contention, he has referred to a Division Bench ruling of this Court in Ram Narain v. Pana-chand Jain AIR 1949 Pat 256 wherein it has been laid down that although there is no bar in the Magistrate taking cognizance of a case on a fresh petition of complaint, in regard to the same offence for which the previous petition of complaint was dismissed, this should, however, not be done unless some fresh facts have been brought to the notice of the Magistrate by the complainant. The following observation of Das, J. occurs in the judgment: It is now well settled that although a previous order dismissing the complaint is no bar to the institution of a fresh case against the same accused, still a new complaint in respect of the same offence should not be entertained, unless there are exceptional circumstances, e.g. where new facts which could not, with reasonable diligence, have been brought forward in the previous proceedings are adduced or there was some manifest error in the previous proceedings, or the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint etc. He has also referred to the cases of Biso Ram v. Emperor AIR 1922 Pat 372 at p. 375 Allah Ditta v. Karam Baksh AIR 1930 Lah 879 and Kumariah Naicker v. Chinna Naicker AIR 1946 Mad 167. It is no doubt true that the other decisions also are along the line which found favour with the learned Judges in the above case AIR 1949 Pat 256. Learned Counsel for the State has, however, drawn my attention in this connection to the following decisions: Janakdhari Singh v. Emperor AIR 1929 Pat 469, Emperor v. Chinna Kaliappa Gounden ILR 29 Mad 126 and Jyotindra Nafh Daw v. Hem Chandra Daw ILR 36 Cal 415. In the first case, it has been held by a Division Bench that, apart from any order of the revisional Court for further enquiry, a Magistrate has jurisdiction to issue summons against the accused persons in spite of the fact that he has already dismissed the complaint tinder Section 203. The other decisions relied upon toy him also lay down the same principle. Learned Counsel for the petitioners, however, has contended that these decisions are of no assistance to the learned Counsel for the opposite party, inasmuch as he does not contest the proposition that a Magistrate has jurisdiction to take cognizance of a complaint even after the previous complaint relating to the same facts has been dismissed by him; but as has been laid down by Das and Narayan, JL, in the case of AIR 1949 Pat 256, this jurisdiction is to be exercised with caution and, where the Magistrate has not done so, it is open to the revisional Court to look into the matter and quash the cognizance taken by the learned Magistrate; inasmuch as where the complainant has acquiesced in the order of the Court dismissing the complaint and has not come up to the Sessions Judge for an order for further enquiry, it would be extremely unjust to allow him to reagitate the matter on identical facts.