# Sabir & Ors v. State of U.P. & Anr

- **Citation:** (2015) 3 ILRA 1519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-01
- **Case number:** Application U/S 482 No. 30994 of 2015
- **Bench:** Om Prakash-Vii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabir-ors-v-state-of-u-p-anr-43368
- **Pages:** 3

## Headnote

Cr.P.C.
Section-482-complaint
casesummoning
order-challenged
on
ground
against
same
occurrence-final
report
submitted-complainant have opportunity to file
protest application-hence second complainant
barred
by
law-held-Learned
Magistrate
consolidated both cases-no question of second
complainant-case law relied by applicant-not
applicable rather support the complainantapplication misconceived -rejected.
Held: Para-7
From perusal of the revisional court's order
dated 22.9.2015 (annexure 6 to the affidavit
accompanying the application), it appears
that court concerned has consolidated both
the matter. No any benefit goes in favour of
the the applicants with the law laid down in
the above cited Jai Ram (Supra) case, rather it
helps to the complainant.
Case Law discussed:
(All) 2013-5-16

## Text

3 All.
 Sabir & Ors. Vs. State of U.P. & Anr.
1519
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2015
BEFORE
THE HON'BLE OM PRAKASH-VII, J
Application U/S 482 No. 30994 of 2015
Sabir & Ors.
 ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Vinod Kumar Shukla
Counsel for the Respondents:
G.A.
Cr.P.C.
Section-482-complaint
casesummoning
order-challenged
on
ground
against
same
occurrence-final
report
submitted-complainant have opportunity to file
protest application-hence second complainant
barred
by
law-held-Learned
Magistrate
consolidated both cases-no question of second
complainant-case law relied by applicant-not
applicable rather support the complainantapplication misconceived -rejected.
Held: Para-7
From perusal of the revisional court's order
dated 22.9.2015 (annexure 6 to the affidavit
accompanying the application), it appears
that court concerned has consolidated both
the matter. No any benefit goes in favour of
the the applicants with the law laid down in
the above cited Jai Ram (Supra) case, rather it
helps to the complainant.
Case Law discussed:
(All) 2013-5-16
(Delivered by Hon'ble Om Prakash-VII, J.)
1. Heard learned counsel for the
applicants and learned AGA for the State.
2. This application under Section
482 Cr.P.C. has been filed with a prayer
to quash the order dated 22.9.2015 passed
by Addl. District & Sessions Judge, Court
No.5, Bijnor in revision no. 153 of 2015
(Sabir & others Vs. Mohd. Irfan and
another) as well as order dated 7.4.2014
passed by Additional Chief Judicial
Magistrate-I, Bijnor in case no.326 of
2013 ( Mohd. Irfan Vs. Sabir & others).
Further prayer has been made to stay the
effect and operation of the impugned
orders.
3. Submission of the learned counsel
for the applicants is that initially the
matter was investigated, in which, police
after investigation, submitted the final
report. The opposite party no.2 filed the
complaint on the basis of same set of
evidence on 27.5.2013. Summoning order
was passed by the Magistrate concerned
against the applicants. The applicants had
challenged the summoning order in the
criminal revision, which was dismissed on
22.9.2015 on the basis of insufficient
ground. It was further submitted that since
the final report was submitted, the
complaint filed subsequent thereof is
barred
by
law.
Complainant
had
opportunity to file the protest petition in
the final report, but the court concerned
did not take into account this aspect of the
matter and illegally taking cognizance
summoned
the
applicants.
Learned
counsel for the applicants has also placed
reliance on the case law of this Court in
support of his contention.
4. On the other hand, learned A.G.A.
argued that only on the basis of
submission of the final report after
investigation by the police, the complaint
filed by the complainant is not barred by
the provisions of law. The present
complaint cannot be treated as second
complaint. Proceedings of the complaint
1520
 INDIAN LAW REPORTS ALLAHABAD SERIES
case are not barred and cannot be quashed
on the ground taken by the applicants.
5. I have considered the rival
submissions advanced by the learned
counsel for the parties and have also
considered the law laid down by this
Court in the case of Jai Ram Vs. State of
U.P., LAW (All) 2013 - 5 -16, as relied
upon by the learned counsel for the
applicants.
6. Regarding maintainability of the
second complaint, this Court in the case
of Jai Ram (supra) has held in paragraphs
8, 9 & 10 as under.
"8. 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
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.".
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".
9. 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.
10. 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
3 All.
 Arun Jaitley Vs. State of U.P.
1521
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).
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
consideration
of
the
case
of
the
complainant on merit."
7. In the present matter, as is evident
from the record, after initiation of the
police investigation, complaint was also
filed by the complainant. Perusal of the
record also shows that no any complaint
was dismissed by the court concerned on
merit. The submission raised by the
learned counsel for the applicants that it is
a second complaint is not acceptable. It is
true that the complainant may file the
protest petition on the final report and the
court
dealing
with
the
matter
is
empowered to treat the protest petition as
complaint, but only on this basis the
complaint filed by the complainant cannot
be treated as second complaint. Learned
counsel for the applicants also did not
disclose the final result of the final report.
From perusal of the revisional court's
order dated 22.9.2015 (annexure 6 to the
affidavit accompanying the application),
it appears that court concerned has
consolidated both the matter. No any
benefit goes in favour of the the
applicants with the law laid down in the
above cited Jai Ram (Supra) case, rather it
helps to the complainant.
8. In view of the above, no ground
for quashing the proceedings of the
aforesaid case as well as the summoning
order is made out which may call for any
interference by this Court in exercise of
its inherent power under Section 482
Cr.P.C. as the same do not suffer from
any illegality or infirmity.
9. The Application u/s 482 Cr.P.C.
is devoid of merit and is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Application U/S 482 No. 32703 of 2015
Arun Jaitley
 ...Applicant
Versus
State of U.P.
..Opp. Party
Counsel for the Applicant:
Mr. Tarun Agarwal, Mr. Manindar Singh
Gill, Mr. Ravi Kant, Mr. Nalin Kohli
Counsel for the Opp. Party: