# Jai Ram and Ors. Revisionists v. State of U.P. and Anr. Opp. Parties

- **Citation:** (2013) 2 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-10
- **Case number:** Criminal Revision No. 251 of 2003
- **Bench:** Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-ram-and-ors-revisionists-v-state-of-u-p-and-anr-opp-parties-42586
- **Pages:** 5

## Headnote

A.G.A., Sri D.P. Singh, Sri P.K. Dubey
2 All] Jai Ram and Ors. Vs. State of U.P.and Anr.
757
Sri Siddharth Niranjan, Sri U.S. Chauhan
Sri Y.S. Sachan

Criminal Revision- against summoning
order-second
complaint
on
same
allegation-earlier complaint on direction
under section 156(3) Cr.P.C. rejectedbecame final-second complaint without
disclosing
earlier-proceeding
even
summoning order totally silent-second
complaint not covered by exceptional
circumstances-explained
in
Pramatha
Nath Case-held-second complaint cannot
be entertained.

Held: Para-17
Perusal of the impugned summoning
order further indicates that the learned
magistrate has not even considered that
he was taking cognizance of the matter
on the basis of second complaint on
same
set
of
facts.
No
exceptional
circumstances have been mentioned in
the impugned order. This court finds that
the facts of both the cases are the same.
Nothing new has been disclosed in the
second complaint. In such situation no
case is made out for summoning the
revisionists as the allegations in both the
complaints are 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 on
same set of facts cannot be entertained.

Case Law discussed:
AIR 1962 SC 876; (2003) 1 SCC 734; (2012) 1
SCC 130; AIR 1982 SC 1238; Crl. Appeal No.
67 of 2013

## Text

756 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
State of Punjab and others, AIR 1963
SC 1909, wherein a five Judge Bench of
the
Hon'ble
Supreme
Court
while
examining the power of review of the
High Court, held as under:

"There is nothing in Article 226 of
the Constitution to preclude a High Court
from exercising the power of review
which inheres in every court of plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. In entertaining B's
petition the High Court thereby did what
the principles of natural justice required it
to do."

14. A Full Bench of this Court in the
case of Dinesh Kumar Gupta versus
State of U.P. 1999(1) UPLBEC 396-FB
while considering the powers of review of
the High Court, arising out of proceedings
under article 226 of the Constitution, held
as under:-

"We consider appropriate to remind
ourselves as to what is the scope of
review jurisdiction of this Court rising out
of a proceedings under article 226 of the
Constitution of India. This has already
been answered by the Supreme Court
through its two 5 judges, decisions and
accordingly no longer res-integra. In
Shivdeo Singh and other Vs State of
Punjab and others, AIR 1963 SC 1909, it
was held that there is nothing in Article
226 of the Constitution to preclude a High
Court from exercising the power of
review which inheres in very court of
plenary jurisdiction to prevent miscarriage
of justice or to correct grave and palpable
errors committed by it. In State of Gujarat
Vs Sardar Begum and others, AIR 1976 SC
1695, it was held that if a patent error has
crept in due to inadvertence the same could
and should have been suo motu corrected by
the High court in the exercise of its inherent
jurisdiction even after the expiry of the
ordinary period of limitation, if any
prescribed for a review application".

15. In view of the aforesaid legal
proposition
and
the
facts
narrated
hereinabove, there are genuine and
reasonable grounds justifying invocation
of powers of the review. Accordingly, the
review petition is hereby allowed. The
judgment and order dated 18.8.2008
passed in writ petition No.478 (Cons.) of
2007 Rajkumari and another versus Dy.
Director of Consolidation and others, is
hereby recalled. The writ petition is
restored to its original number and the
interim order is also revived.

16. List the writ petition before the
appropriate bench dealing with the
Consolidation matters in the month of
July, 2013 and it shall not be treated as
tied up matter. As the old lady is litigating
since 1993, the matter shall be listed
within first ten cases of cause list.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2013

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 251 of 2003

Jai Ram and Ors.
 ...Revisionists
Versus
State of U.P. and Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri A.K. Sachan, Sri Ajay Kumar Srivastava
Sri Anand Priya Singh

Counsel for the Opp. Parties:
A.G.A., Sri D.P. Singh, Sri P.K. Dubey
2 All] Jai Ram and Ors. Vs. State of U.P.and Anr.
757
Sri Siddharth Niranjan, Sri U.S. Chauhan
Sri Y.S. Sachan

Criminal Revision- against summoning
order-second
complaint
on
same
allegation-earlier complaint on direction
under section 156(3) Cr.P.C. rejectedbecame final-second complaint without
disclosing
earlier-proceeding
even
summoning order totally silent-second
complaint not covered by exceptional
circumstances-explained
in
Pramatha
Nath Case-held-second complaint cannot
be entertained.

Held: Para-17
Perusal of the impugned summoning
order further indicates that the learned
magistrate has not even considered that
he was taking cognizance of the matter
on the basis of second complaint on
same
set
of
facts.
No
exceptional
circumstances have been mentioned in
the impugned order. This court finds that
the facts of both the cases are the same.
Nothing new has been disclosed in the
second complaint. In such situation no
case is made out for summoning the
revisionists as the allegations in both the
complaints are 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 on
same set of facts cannot be entertained.

Case Law discussed:
AIR 1962 SC 876; (2003) 1 SCC 734; (2012) 1
SCC 130; AIR 1982 SC 1238; Crl. Appeal No.
67 of 2013

(Delivered by Hon'ble Bharat Bhushan, J.)

1. By means of present revision,
seven revisionists have challenged the
impugned
summoning
order
dated
30.11.2002 passed in Case No. 466 of
2002 (Mishri Lal Sachan Vs Jai Ram),
under Section 147,506 IPC, P.S. Sajeti,
District Kanpur Dehat whereby all the
revisionists have been summoned by the
learned Magistrate to face the trial for the
said offences.

2. A lawyer of Kanpur Dehat, Mishri
Lal Sachan has initiated criminal proceedings
against seven revisionists stating that on
6.6.2001 at about 8 p.m. he was returning
from Village Harbaspur with his advocate
son Sunil Kumar Sachan. They were
intercepted by the applicants near 'Banyan'
tree at the gun point and were threatened by
the applicants with dire consequences. Both
the lawyers pleaded for
mercy
and
revisionists let them off.

3. The police allegedly refused to
register the F.I.R. On the intervention of the
Magistrate, an FIR vide Case Crime No.
144 of 2001, under Section 147,506 was
registered
against
the
revisionists.
Subsequent
to
the
investigation,
the
Investigating Officer submitted the final
report. Against the final report, protest
petition was filed by the complainant which
was rejected by the court below vide order
dated
20.11.2001.Thereafter,
opposite
party/complainant preferred a criminal
revision being Revision Petition No. 205 of
2001 before the Sessions Judge, Kanpur
Dehat which was ultimately decided by
Addl. Sessions Judge, Court No. 7, vide
judgement and order dated 30.1.2002.

4. It is stated that after a lapse of
more than six months another complaint
on the same facts was filed on 7.7.2002
against the applicants. Learned Magistrate
recorded
the
statements
of
the
complainant and his witnesses under
Section200/202 Cr.P.C and thereafter
summoned the revisionists to face the trial
for the offences under Sections 147,506
IPC vide order dated 30.11.2002, which is
subject matter of challenge before this
court in the present criminal revision.
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

5. Heard learned counsel for the
revisionists, learned counsel for the
informant and learned A.G.A. and have
also perused the material on record.

6. It is submitted by learned counsel
for
the
revisionists
that
once
the
revisionists have been let off by the court
below up to revisional stage, second
complaint for the same facts is not
permissible in the eyes of law.

7. It is submitted by the learned
counsel for the revisionists that the
revisionists No. 1 & 2 are the Government
servant and are working as Village
Development Officer at Bhitar Gaon
Block, revisionist No. 3 is a Sub Inspector
posted at Aligarh, revisionists No. 4 & 5
are the witnesses in other case filed
against
the
opposite
party
no.
2,
revisionist no. 6 is the village pradhan and
respondent no. 7 is the brother of the
revisionist no. 6. They have been falsely
implicated in a cooked up case due to
village enmity and party bandi. It is
further contended by learned counsel for
the revisionists that the complainant and
his son are practising Advocate at kanpur
and
they
have
been
continuously
harassing the revisionists by filing false
cases with oblique motives just to create
pressure and harass the revisionists.

8. In reply, it is submitted by learned
counsel for the complainant that the
revisionist have been rightly summoned
by the court below on the basis of the
statements of the witnesses recorded
under Section 202 Cr.P.C. veracity of
which can only be examined during trial.
He,
however,
admitted
that
the
complainant did not challenge the order
dated 30.1.2002 passed by the learned
Addl. Sessions Judge, Court No. 7
dismissing the revision petition filed by
the complainant but at the same time he
would argue that the complainant also has
a remedy to file a complaint. Learned
A.G.A. has also supported the order
passed by the court below.

9. The short question involved in the
present case is as to whether the second
complaint in a criminal case on the same
set of facts and allegations is maintainable
or not, when the first FIR on same facts
was closed on merits up to revisional
stage by the courts below.

10. Learned counsel for the
revisionists, very strongly submits that the
second
complaint
filed
by
the
complainant is nothing but verbatim
reproduction of the earlier FIR filed by
the opposite party no. 2 which is not
legally sustainable in the eyes of law.
Prosecution of the revisionists on the
basis of such complaint is liable to be
quashed by this Court.

11. There is no dispute regarding
maintainability of second complaint as
laid down in various pronouncements.
Hon'ble Supreme Court in the case of
Pramatha Nath Talukdar and another
vs. Saroj Ranjan Sarkar - (AIR 1962
SC 876). has laid down thus:

"There is nothing in law which
prohibits the entertainment of a second
complaint on the same allegations when a
previous complaint had been dismissed
under Section 203 of the Code of
Criminal Procedure. As however, a rule of
necessary caution and of proper exercise
of the discretion given to a Magistrate
under Section 204(1) of the Code of
Criminal
Procedure,
exceptional
circumstances
must
exist
for
the
2 All] Jai Ram and Ors. Vs. State of U.P.and Anr.
759
entertainment of the second complaint on
the same allegations; in other words, there
must be good reasons, why the Magistrate
thinks that there is "sufficient ground for
the
proceeding"
with
the
second
complaint, when a previous complaint on
the same allegations was dismissed under
s. 203 of the Code of Criminal Procedure.

The question now is, what should be
those exceptional circumstances ? In
Queen Empress v. Dolagobind Dass (1),
Maclean, C. J. said: "I only desire to add
that no Presidency Magistrate ought, in
my opinion, to rehear a case previously
dealt with by a Magistrate of coordinate
jurisdiction upon the same evidence only,
unless he is plainly satisfied that there has
been some manifest error or manifest
miscarriage of justice.".

12. In the same decision, the Apex
Court also has laid down the test to
determine the exceptional circumstances
which
are.--(1)
manifest
error;
(2)
manifest miscarriage of justice; and (3)
new facts which the complainant had no
knowledge
of
or
could
not
with
reasonable
diligence
have
brought
forward in the previous proceedings".

13. The Hon'ble Apex 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 the judgment of
Pramatha Nath Talukdar and another
(supra) the Hon'ble Apex Court opined
that fresh evidence or fresh facts must be
such which could not with reasonable
diligence have been brought on record.
The 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 complaint is
dismissed adduce some more evidence.

14. In Mahesh Chand vs. B.
Janardhan Reddy and another - (2003)
1 SCC 734, the Hon'ble Apex 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 case 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) the Hon'ble Apex Court relied on
the ratio in Pramatha Nath (supra) and
held that if the first complaint had been
dismissed the second complaint can be
entertained
only
in
exceptional
circumstances as has been pointed out in
Pramatha Nath (supra).

15. In Shiv Shankar Singh Vs
State of Bihar and another (2012) 1
SCC 130, the Hon'ble Apex Court has
held as under:

"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
760 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
consideration
of
the
case
of
the
complainant on merit."

16. In the present case, what
emerges from the pleading of the petition
that earlier criminal case was initiated on
the basis of the application 156(3) Cr.P.C.
which was investigated by the police and
after
investigation,
the
Investigating
Officer submitted the final report. Against
the final report, protest petition was filed
by the complainant which was rejected by
the
court
below
vide
order
dated
20.11.2001 after perusing the statements
of the complainant and his witnesses.
Thereafter, the revision petition filed
against the said order was also dismissed
by the learned Addl. Sessions Judge on
merits. The order passed by the learned
Addl. Sessions Judge in revision was not
challenged by the complainant before this
Court. Thus, the second complaint on
similar facts is not maintainable.

17. Perusal of the impugned
summoning order further indicates that
the learned magistrate has not even
considered that he was taking cognizance
of the matter on the basis of second
complaint on same set of facts. No
exceptional circumstances have been
mentioned in the impugned order. This
court finds that the facts of both the cases
are the same. Nothing new has been
disclosed in the second complaint. In such
situation no case is made out for
summoning
the
revisionists
as
the
allegations in both the complaints are
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 on same set of facts
cannot be entertained.

18. The Hon'ble Apex Court in
Chandrapal Singh & Ors. v. Maharaj
Singh & Anr., AIR 1982 SC 1238, has
held that it is equally true that chagrined and
frustrated litigants should not be permitted
to give vent to their frustration by enabling
them to invoke the jurisdiction of criminal
courts by cheaply invoking the jurisdiction
of the criminal court. In such a factsituation, the court must not hesitate to
quash criminal proceedings.

19. In Criminal Appeal No. 67 of
2013 (Ravinder Singh Vs. Sukhbir
Singh & Ors) decided on 11.1.2013, the
Hon'ble Apex Court has held as under:-

"It may be so necessary to curb the
menace of criminal prosecution as an
instrument of operation of needless
harassment. A person cannot be permitted
to unleash vendetta to harass any person
needlessly. Ex debito justitiae is inbuilt in
the inherent power of the court and the
whole idea is to do real, complete and
substantial justice for which the courts
exist. Thus, it becomes the paramount
duty of the court to protect an apparently
innocent person, not to be subjected to
prosecution on the basis of wholly
untenable complaint."

20. In view of above, the revision
petition
is
allowed.
The
impugned
summoning
order
dated
30.11.2002
passed in Case No. 446 of 2002 (Mishri
Lal Vs Jai Ram) under Section 147/50
IPC, P.S. Sajeti, District Kanpur Dehat,
pending in the court of Addl. Civil Judge
(JD) Court No. 1/Judicial Magistrate,
Kanpur Dehat is hereby quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2013