# Bhupendra Singh v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Case number:** U/S 482/378/407 No. 1253 of 2016
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-singh-v-state-of-u-p-anr-44800
- **Pages:** 6

## Headnote

Law-Code
of
Criminal
Procedure. 1973- Section 482, Section
156(3), Sections 200/202 - Summoning
order-On basis of Second Complaint-The
opposite party no. 2 moved an application
under section 156(3) Cr.P.C- Rejected by the
Learned C.J.M on merits -Second Complaint
for the same incident again filed by the
Opposite
Part
No.2-
without
disclosing
dismissal of first complaint.

B. Held- Second complaint is nothing but a
mere repetition of the first application - None
of
the
exceptional
circumstances
as
enumerated in the judgement of Poonam
Chand Jain vs. Farzu, (2010) 2 SCC 631,
(2010) 2 SCC (cri) 1085 (supra) were available
while filing the second complaint- Hence
Second
Complaint
held
to
be
not
maintainable-
Complaint
Case
quashed-
Application u/s 482 Cr.P.C. is disposed off.
(Para 15,16,17,18)

Application u/s 482 Cr.P.C. is disposed
off.
(E-3)
3 All. Bhupendra Singh Vs. State of U.P.& Anr.
19
List of cases cited: -

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES
against the accused and therefore the
learned Trial Court has rightly framed the
charge against the accused and the same is
rightly confirmed by the High Court. No
interference of this Court is called for.

"Tarun Tej Pal Vs. Goa, 2019 SCC
Online 1053 after taking note of the
judgement in the case of Union of India Vs.
Praful .. n paragraph 20 of the judgement
held as 32 it has been held as under :-

30. Thus, the law is very well settled
that while considering the application for
discharge or at the time of framing of charge,
the Court is only required to weigh the
material and evidence on record to find out
whether, prima facie, case is made out
against the accused, which raises strong
suspicion against him to have committed the
offence and, if it is found that the ingredients
of the commission of the offence are
available on the basis of record, the Court
will proceed to frame the charge. At this
stage, the Court is not required to weigh the
evidence in detail to find out whether
evidence would be sufficient to record
conviction or not. The Court is only required
to evaluate the material and evidence to find
out prima facie case.

31. Considering the facts of the
present case and on the anvil of law as
has emerged, it cannot be said that there
is not enough material for a prima facie
case which raises strong suspicion against
the petitioner to have committed the
offences under Sections 420, 467, 468,
471 IPC and, therefore, the present
petition, which has remained pending in
the Court since 2004, is hereby dismissed.

32 . The learned Magistrate is
directed to proceed immediately to frame
charge
and,
conclude
the
trial
expeditiously, preferably, within a period
of one year.
----------

(2019)11ILR A18

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.11.2019

BEFORE

THE HON'BLE PANKAJ BHATIA , J.

U/S 482/378/407 No. 1253 of 2016

Bhupendra Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gopesh Tripathi

Counsel for the Opposite Parties:
Govt. Advocate, Sri Shreesh Kr. Mishra

A.
Criminal
Law-Code
of
Criminal
Procedure. 1973- Section 482, Section
156(3), Sections 200/202 - Summoning
order-On basis of Second Complaint-The
opposite party no. 2 moved an application
under section 156(3) Cr.P.C- Rejected by the
Learned C.J.M on merits -Second Complaint
for the same incident again filed by the
Opposite
Part
No.2-
without
disclosing
dismissal of first complaint.

B. Held- Second complaint is nothing but a
mere repetition of the first application - None
of
the
exceptional
circumstances
as
enumerated in the judgement of Poonam
Chand Jain vs. Farzu, (2010) 2 SCC 631,
(2010) 2 SCC (cri) 1085 (supra) were available
while filing the second complaint- Hence
Second
Complaint
held
to
be
not
maintainable-
Complaint
Case
quashed-
Application u/s 482 Cr.P.C. is disposed off.
(Para 15,16,17,18)

Application u/s 482 Cr.P.C. is disposed
off.
(E-3)
3 All. Bhupendra Singh Vs. State of U.P.& Anr.
19
List of cases cited: -

1. Poonam Chand Jain vs. Farzu, (2010) 2 SCC
631, (2010) 2 SCC (cri) 1085

2. Pramatha Nath Talukdar and another vs.
Saroj Ranjan Sarkar, (AIR 1962 SC 876)

3. State of Haryana and others vs. Bhajan Lal
and others, 1992 Supp(1) SCC 335

4. M. Nagabhushan vs. State of Karnataka and
others, (2011) 3 SCC 408

5. Upkar Singh vs. Ved Prakash and others,
AIR 2004 SC 4320

(Delivered by Hon'ble Pankaj Bhatia, J. )

1. Heard Sri Gopesh Tripathi,
learned counsel for the applicant, learned
AGA for the State and perused the
material available on record.

2. The present application 482
Cr.P.C. has been filed challenging the
summoning
order
dated
18.10.2018
passed in Complaint Case No. 433 of
2013 as well as the revisional order dated
23.12.2015 passed in Criminal Revision
No. 10 of 2014.

3. The allegations in brief leading to
the filing of the present application are:

4. That the applicant is the
proprietor of M/s Vikram Shastralaya 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.

5. The opposite party no. 2 moved
an application under section 156(3)
Cr.P.C 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
156(3)
Cr.P.C.
was
registered
as
Miscellaneous Case No. 173 of 2012 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 Jaswant
Singh 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.

6. 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 200 Cr.P.C. The
CJM taking cognizance of the offence as
disclosed in the complaint dated 4.7.2012
registered the case as Case No. 433 of
2012 and proceeded to record the
statements under sections 200 and 202
Cr.P.C. and proceeded to summon the
applicant under sections 504, 506, 406,
419, 420, 467, 468 and 471 IPC vide
20 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 18.10.2018 (Annexure6 to the
application).

7. The applicant challenged the said
summoning order by filing a Criminal
Revision No. 10 of 2014 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.

8. Sri Gopesh Tripathi, learned
counsel for the applicant, has strenuously
argued that the proceedings initiated vide
Complaint Case No. 433 of 2012 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 State of Haryana
and others vs. Bhajan Lal and others,
1992 Supp(1) SCC 335. 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 M. Nagabhushan vs. State of
Karnataka and others, (2011) 3 SCC
408. He further argued that after the
dismissal of the application under section
156(3) Cr.P.C., 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 Poonam Chand Jain and
another vs. Farzu, (2010) 2 SCC 631,
(2010) 2 SCC (cri) 1085. 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.

9. The copy of the complaint,
statement recorded under sections 200
Cr.P.C. and 202 Cr.P.C. 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.

10. 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 200
Cr.P.C. 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.

11. The counsel for the respondent
has filed a counter affidavit bringing on
record an affidavit of Jaswant Singh dated
13.4.1996, which is alleged to be a forged
3 All. Bhupendra Singh Vs. State of U.P.& Anr.
21
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.

12. 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 Upkar Singh
vs. Ved Prakash and others, AIR 2004
SC 4320.

13. 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 sections 200 and 202 Cr.P.C 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.

14. The Apex Court in the case of
Poonam Chand Jain vs. Farzu, (2010) 2
SCC 631, (2010) 2 SCC (cri) 1085
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 Pramatha Nath
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 Pramatha Nath Talukdar and
another vs. Saroj Ranjan Sarkar, (AIR
1962 SC 876). The majority judgment in
Pramatha Nath (supra) was delivered by
Justice Kapur. His Lordship held that an
order of dismissal under Section 203 of
the Criminal Procedure Code (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
22 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Jatinder Singh and others vs. Ranjit Kaur
(AIR 2001 SC 784). There also this Court
by relying on the principle in Pramatha
Nath (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 202 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 203 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 Pramatha Nath (supra) and
quoted the observation of Justice Kapur
in paragraph 48 of Pramatha Nath
(supra):-

"......An
order
of
dismissal
under S. 203, 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 person should be given
another opportunity to have his complaint
enquired into......"

Again in Mahesh Chand vs. B.
Janardhan Reddy and another- (2003) 1
SCC 734, 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 204 of the Code can take
cognizance of an offence and issue
process if there is sufficient ground for
proceeding. In Mahesh Chand (supra)
this Court relied on the ratio in Pramatha
Nath (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
Pramatha
Nath
(supra)
were
reiterated.

Therefore, this Court holds that
the ratio in Pramatha Nath (supra) is still
holding the field. The same principle has
been reiterated once again by this Court
in Hiralal and others vs. State of U.P. &
others- AIR 2009 SC 2380. In paragraph
14 of the judgment this Court expressly
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
23
quoted the ratio in Mahesh Chand (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
Pramatha Nath (supra). In that view of
the matter the second complaint in the
facts of this case, cannot be entertained."

15. 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 Poonam Chand Jain
(supra) were available while filing the
second complaint.

16. On this count alone and placing
reliance on the judgement of Poonam
Chand Jain (supra) I have no hesitation
in holding that the summoning order
dated 18.10.2013 passed in Complaint
Case No. 433 of 2013 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.

17. Consequently, the Complaint
Case No. 433 of 2013, pending before the
court of Additional Civil Judge (Junior
Division)/Magistrate,
Court
No.
22,
Raebareli is hereby quashed.

18. The application u/s 482 Cr.P.C.
is disposed off.

19. Let a copy of this order be sent
to the court concerned for it being placed
on record.
----------
(2019)11ILR A23

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.11.2019

BEFORE
THE HON'BLE PANKAJ BHATIA , J.

U/S 482/378/407 No. 2916 of 2016

N.K. Mehrotra ...Applicant
Versus
Chief Judicial Magistrate, Lucknow &
Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anupam Mehrotra

Counsel for the Opposite Parties:
Govt. Advocate, Dr. Nutan Thakur (In
Person)

A.
Crimina
Law-Code
of
Criminal
Procedure, 1973 - Section 197; Uttar
Pradesh Lokayukta and Up-Lokayuktas
Act, 1975- Protection under Section 17
(1) of the Lokayukta Act- has to be