# Yogeshwar Raj Nagar & Anr v. State of U.P. & Anr

- **Citation:** (2025) 3 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-06
- **Case number:** Matters Under Article 227 No. 4173 of 2018
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogeshwar-raj-nagar-anr-v-state-of-u-p-anr-53233
- **Pages:** 12

## Headnote

Criminal Law - Constitution of India, 1950
- Article 20 & 227 - Indian Penal Code,
1860 - Sections 406, 420, 465, 471 & 506
- Criminal Procedure Code, 1973 - Section
468 & 482 - The dispute over the management
of a society and an educational institution led to
multiple legal proceedings - a complaint case -
an FIR was field in 2005 - but after
investigation, the police submitted a final report
in 2006 due to insufficient evidence - final
report was accepted by the trial court in 2012 -
In 2017, the opposite party filed another
complaint against petitioner based on the same
facts - leading to summoning orders - criminal
revision - dismissed - instant writ u/Article 227
- additionally, after a six-year delay, opposite
party no. 2 contested the acceptance of the final
report through an Application U/s 482, with no
justification for the delay - both cases arise
from the same cause of action and are decided
through a common judgment - court finds that,
- (i) the dispute primarily pertains to the
management of a society and educational
institution, which is of a civil nature but, attempts
to give it a criminal colour were deemed
inappropriate, - (ii) to prove an offense under
Section 406 IPC, entrustment is necessary, which
wasn't shown in this case, - (iii) The summoning
order was vague and lacked proper reasoning, -
(iv) Filing a second complaint on the same set of
facts after a significant delay was deemed
unwarranted and hit by Section 468 CrPC - (v)
before summoning someone, the court must
carefully check if there are valid grounds to
proceed, which wasn't done here - held, - trial
court has erred in entertaining the second
complaint and further the order impugned is very
cryptic order, whereby the applicant have been
summoned, therefore, the same is not sustainable
- accordingly, the writ petition under Article 227 is
allowed - and - the application under Section 482
CrPC is dismissed due to delay and lack of merit.
(Para - 27, 28, 30, 36, 37, 38)

Writ
petition
Allowed
&
Application
Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,998 of 41,186. This is a partial read: ask again with offset=39998 for what follows._

3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
73
Court finds that the opposite party
no.2 failed to discharge the statutory
obligation.

7. Accordingly, the order dated
05.03.2025 is set aside/quashed to the
extent aforesaid. The petition is thus
allowed. No order as to costs.

8. The Court records the valuable
assistance given by Ms. Urmish Shankar,
Research Associate, attached with me in
drafting this judgment.
----------
(2025) 3 ILRA 73
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Matters Under Article 227 No. 4173 of 2018
(Criminal)
Connected with
Application U/S 482 No. 2701 of 2019

Yogeshwar Raj Nagar & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Ms. Abhilasha Singh, Sri Ashutosh yadav,
Sri Manoj Kumar Rajvanshi, Sri Shyam Lal,
Sri Yadvesh Yadav

Counsel for the Respondents:
G.A., Sri Lallan Prasad Yadav, Sri Nagesh
Kumar, Sri Vimlendu Tripathi

Criminal Law - Constitution of India, 1950
- Article 20 & 227 - Indian Penal Code,
1860 - Sections 406, 420, 465, 471 & 506
- Criminal Procedure Code, 1973 - Section
468 & 482 - The dispute over the management
of a society and an educational institution led to
multiple legal proceedings - a complaint case -
an FIR was field in 2005 - but after
investigation, the police submitted a final report
in 2006 due to insufficient evidence - final
report was accepted by the trial court in 2012 -
In 2017, the opposite party filed another
complaint against petitioner based on the same
facts - leading to summoning orders - criminal
revision - dismissed - instant writ u/Article 227
- additionally, after a six-year delay, opposite
party no. 2 contested the acceptance of the final
report through an Application U/s 482, with no
justification for the delay - both cases arise
from the same cause of action and are decided
through a common judgment - court finds that,
- (i) the dispute primarily pertains to the
management of a society and educational
institution, which is of a civil nature but, attempts
to give it a criminal colour were deemed
inappropriate, - (ii) to prove an offense under
Section 406 IPC, entrustment is necessary, which
wasn't shown in this case, - (iii) The summoning
order was vague and lacked proper reasoning, -
(iv) Filing a second complaint on the same set of
facts after a significant delay was deemed
unwarranted and hit by Section 468 CrPC - (v)
before summoning someone, the court must
carefully check if there are valid grounds to
proceed, which wasn't done here - held, - trial
court has erred in entertaining the second
complaint and further the order impugned is very
cryptic order, whereby the applicant have been
summoned, therefore, the same is not sustainable
- accordingly, the writ petition under Article 227 is
allowed - and - the application under Section 482
CrPC is dismissed due to delay and lack of merit.
(Para - 27, 28, 30, 36, 37, 38)

Writ
petition
Allowed
&
Application
Dismissed. (E-11)

List of Cases cited:

1. Lalan Kumar Singh & ors. Vs St. of Mah.:
2022 SCC OnLine SC 1383,

2. Delhi Race Club Ltd. Vs St. of U.P.: (2024) 10
SCC 690,

3. Mahboob & ors. Vs St. of U.P. & anr.: 2016
SCC OnLine All 4468,

4. Bhagirath Kanoria & ors. Vs St. of M.P.:
(1984) 4 SCC 222,
74 INDIAN LAW REPORTS ALLAHABAD SERIES
5. krishna Bhattacharjee Vs Sarthi Choudhary:
(2016) 2 SCC 705,

6. Balram Singh Vs Sukhwant Kaur & anr.: 1991
SCC OnLine P&H 37,

7. Shailesh Tripathi & ors. Vs St. of U.P. & anr.
(Application U/s 482 Cr.P.C. No. 12792 of 2015),

8. Pramatha Nath Talukdar Vs Saroj Ranjan
Sarkar, 1961 SCC OnLine SC 155,

9. Shivshankar Singh Vs St. of Bihar, (2012) 1
SCC 130,

10. Jatinder Singh Vs Ranjit Kaur, (2001) 2 SCC
570,

11. Subrata Choudhury Vs St. of Assam, 2024
SCC OnLine SC 3126,

12. Dwarka Nath Mandal Vs Beni Madhas
Banerjee: ILR1901 28 Kolkata 652,

13. Bindeshwari Prasad Singh Vs Kali Singh:
(1977) 1 SCC 57.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Ashutosh Yadav, learned
counsel for the petitioners, Sri Vimlendu
Tripathi, learned counsel for the opposite
party no. 2 and learned A.G.A. for the
State.

2. Both the aforesaid cases are
arising out of the same cause of action and
facts of both the cases are similar to each
other. In view thereof, both the cases are
being decided by this common judgement.

3. The writ petition under Article
227 of the Constitution of India has been
filed by the petitioners seeking quashing of
the order dated 28.04.2018 passed by the
Additional Sessions Judge, Court No.5,
Bulandshahar in Criminal Revision No. 2
of 2018 (Yogeshwar Raj Nagar and
Another vs. State of U.P. and Another) as
well as the order dated 06.10.2017 passed
by
the
Additional
Chief
Judicial
Magistrate, Court No. 3, Bulandshahar, in
Complaint Case No. 536 of 2017 (Shailja
vs. Yogeshwar) under Section 406 of I.P.C.
Vide
order
dated
06.10.2017,
the
petitioners were summoned for the offence
under Section 406 I.P.C. in the aforesaid
complaint case filed by the opposite party
no. 2 against which a criminal revision was
preferred by the petitioner which was also
dismissed vide order dated 28.04.2018.

4. The application under Section
482 Cr.P.C., has been filed by the
applicant- Smt. Shailja Nagar, who is the
opposite party no. 2 in the writ petition
seeking quashing of the order dated
22.11.2012, passed by the Chief Judicial
Magistrate, Bulandshahar, in Misc. Case
(Final Report) No. 679 of 2007 (Smt.
Shailja Nagar and Others) arising out of
Case Crime No. 33 of 2005 under Sections
406, 420, 465, 476 and 506 I.P.C., Police
Station-Sikandarabad,
District-
Bulandshahar, whereby the Final Report
submitted by the Investigation Officer has
been accepted.

5. The brief facts of the case are
that the petitioner no.1 and the husband of
the opposite party no. 2 are the real
brothers. The father of the petitioner no.1
and the husband of the opposite party no. 2
had established a Society known as 'Spring
Dale Academy' at Railway Colony Road,
Sikandrabad, District- Bulandshahar, with
an aim and object to impart education by
establishing a reputed public school. In
pursuance of the object of establishment of
Society, the school was duly established
and affiliated to the CBSE Board. The
father of petitioner no. 1 had executed a
Will on 06.03.2003 in favour of petitioner
3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
75
no. 1 and another Will on 10.03.2003 and
subsequent thereto, he had died on
17.03.2003. Thereafter, the name of the
said Society was changed as 'Rajbala
Spring Dale Academy'.

6. After the death of Major Deshraj
Singh, father of the petitioner no. 1, there
arose a dispute with regard to the
management and affairs of the said Society
and the school, which was established by
the Society. It appears that the management
of the Society was taken over by the
petitioner no. 1. Aggrieved by the same
various proceedings were initiated by the
opposite
party
no.
2
including
the
registration of the First Information Report
being Case Crime No. C-33 of 2005 on
03.09.2005 under Sections 406, 420, 465,
468, 471 and 506 I.P.C. at Police Station-
Sikandrabad, District- Bulandshahar.

7. Investigation of the aforesaid F.I.R.
was concluded and thereafter a Charge-Sheet No.
226 of 2006 dated 27.06.2006 was submitted.
Thereupon, an order for further investigation was
passed. After the further investigation and on the
basis of statements of witnesses and verification of
documents, sufficient evidence was not found
against the accused persons. Thereupon, the Final
Report was submitted. Against the Final Report,
the opposite party no. 2 had submitted a protest
petition. After submission of the protest petition
and despite opportunity granted, opposite party
no. 2 failed to appear before the Court.
Accordingly, by an ex-parte order dated
22.11.2012 the Final Report was accepted by the
Court.
Thereupon, various
other disputes
continued between the parties. However, the
opposite party no. 2 did not choose to challenge
the said order dated 22.11.2012 for sufficiently
long time.

8. Subsequently, the opposite party
no. 2 filed a Complaint Case No. 536 of
2017 (Shailja vs. Yogeshwar) on identical
facts claiming therein that the order dated
22.11.2012 was passed accepting the Final
Report without any knowledge to the
opposite party no. 2. In the aforesaid
complaint the prayer was made that by
taking into consideration the facts of Case
Crime No. C-33 of 2005 on 03.09.2005
under Sections 406, 420, 465, 468, 471 and
506 I.P.C. at Police Station- Sikandrabad,
District- Bulandshahr and the investigation
report submitted in the said case after
recording the statements of witnesses, the
petitioners be punished.

9. After recording the statements of
witnesses under Sections 202 Cr.P.C.
learned
Additional
Chief
Judicial
Magistrate vide order dated 06.10.2017
summoned the petitioners herein under
Section 406 I.P.C. Against which Criminal
Revision No. 2 of 2018 was filed by the
petitioners, which was also dismissed.
Being aggrieved by the said order, the
instant criminal misc. writ petition has been
filed by the petitioners. After filing of the
aforesaid writ petition the opposite party
no. 2 has also filled an application under
Section 482 Cr.P.C. seeking quashing of
the order dated 22.11.2012 passed by the
Chief Judicial Magistrate, Bulandshahar in
Misc. Case Crime No. 679 of 2007 arising
out of Case Crime No. C-33 of 2005 under
Sections 406, 420, 465, 468, 471 and 506
I.P.C. after a delay of about 6 years. In the
entire application under Section 482
Cr.P.C. filed by the opposite party no. 2, no
explanation has been offered for delay of
about six years in approaching this Court
for quashing of the order dated 22.11.2012.

10.
Learned
counsel
for
the
petitioners has submitted that in the instant
case the petitioners have been summoned
for the offence under Section 406 I.P.C. on
76 INDIAN LAW REPORTS ALLAHABAD SERIES
a complaint which was filed in the year,
2017 for the same cause of action for which
the criminal proceedings initiated by the
opposite party no. 2, were concluded by
order dated 22.11.2012, whereby the Final
Report was accepted by the trial court. The
opposite party no. 2 was fully aware about
the proceedings as continuously various
other litigations were pending between the
parties with regard to management of
affairs of the Society and the opposite party
no. 2 was continuously contesting those
cases. Therefore, for the offence under
Section 406 I.P.C., the cognizance ought
not to have been taken by the learned
Magistrate, vide order dated 06.10.2017, as
the same is barred under Section 468
Cr.P.C. and the maximum punishment for
the offence under Section 406 I.P.C. is 3
years and the cause of action for the same
has arisen in the year, 2005 itself and the
complaint has been lodged by the opposite
party no. 2 after 12 years from initial cause
of action for which the F.I.R. was lodged,
which has been concluded against the
opposite party no. 2 on 22.11.2012. Even
from that point of time the complaint filed
by the opposite party no. 2 is delayed by 6
years.
Therefore,
by
no
stretch
of
imagination the cognizance can be taken by
the Magistrate in view of the prohibition
under Section 468 Cr.P.C. Learned counsel
for the petitioner further submits that for
the same cause of action the prosecution of
the petitioners has finally been concluded
by
accepting
the
Final
Report
on
22.11.2012. Thus, filing of complaint that
too after 6 years for the same cause of
action amounts to double jeopardy which is
hit by Article 20 of the Constitution of
India.

11. Learned counsel for the petitioner
further
submits
that
the
order
dated
06.10.2017 passed by the learned Magistrate,
summoning the petitioners herein is a cryptic
order and cannot be sustained in law as the
same has been passed without assigning any
reason or without considering the material
available on record. In view thereof, learned
counsel for the petitioners seeks quashing of
the order dated 06.10.2017 passed by the
Additional Chief Judicial Magistrate as well
as the order dated 28.04.2018 passed by the
Revisional Court.

12.
Learned
counsel
for
the
petitioners further submits that the entire
controversy between the parties is with
regard to management of affairs of the
Society and the school and the petitioners
claim right on the basis of the Will executed
by the father of the petitioner in his favour
exclusively whereas the opposite party no. 2
claims right on the basis of subsequent Will
to manage the affairs of the Society.
Therefore, the dispute between the parties is
purely of a civil nature and the instant
proceedings were initiated with intent to give
criminal colour to a civil dispute, to create
pressure with mala fide intentions.

13. Learned counsel for the petitioner
further submits that for constituting the
offence under Section 406 I.P.C., there must
be some entrustment on the part of the
complainant and in the instant case there is no
such allegation that any entrustment was
made by the opposite party no. 2. Even the
offence under Section 406 I.P.C., is not made
out against the petitioners for wants of
entrustment. The dispute is only with regard
to succession of the right to manage the
society. Therefore, the courts below have
failed
to
appreciate
the
facts
and
circumstances of the instant case in its true
perspective.

14. In support of his submissions
learned counsel for the petitioners has
3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
77
relied upon judgements of the Apex Court
passed in Lalan Kumar Singh and Others
vs. State of Maharashtra: 2022 SCC
OnLine SC 1383, Delhi Race Club Ltd. vs.
State of U.P. : (2024) 10 SCC 690 and also
upon the judgement of this Court at
Lucknow Bench in Mahboob and Others
vs. State of U.P. and Another : 2016 SCC
OnLine All 4468

15.
Learned
counsel
for
the
petitioner
has
further
submitted
that
summoning of the persons for a criminal
offence is a very serious matter and it
should not be done in a mechanical
manner. Application of mind must reflect
in the order summoning the accused.

16. Per contra, learned counsel for
the opposite party no.2 relying upon the
judgements
of
the
Apex
Court
in
Bhagirath Kanoria and Others vs. State of
M.P. : (1984) 4 SCC 222, krishna
Bhattacharjee
vs.
Sarthi
Choudhary:
(2016) 2 SCC 705, judgment of the Punjab
and Haryana High Court in Balram Singh
vs. Sukhwant Kaur and Another : 1991
SCC OnLine P&H 37, judgements of this
Court in Shailesh Tripathi and 5 Others
vs. State of U.P. and Another (Application
under Section 482 Cr.P.C. No. 12792 of
2015) submits that the offence under
Section 406 I.P.C., is a continuous offence.

17.
Learned
counsel
for
the
opposite party no. 2 further submits that the
order dated 22.11.2012 was passed by
Chief Judicial Magistrate- Bulandshahar,
without giving any opportunity to the
petitioners herein and she was not aware
about the conclusion of the proceedings
whereby the protest petition filed by the
opposite party no. 2 was rejected and the
Final
Report
was
accepted.
Learned
counsel for the opposite party no. 2 further
submits that the offence under Section 406
I.P.C. is a continuous offence by the
petitioners, as they were continuously
carrying on the affairs of the management
of the Society and the school despite their
right to manage the affairs of the Society
was rejected upto the Apex Court on
various proceedings initiated by both the
parties. Since, it is an offence of continuing
nature the opposite party no. 2 had every
right to file the complaint case and
therefore, the provisions of Section 468
Cr.P.C. would not attract in the instant
case.

18.
Learned
counsel
for
the
opposite party no.2 has further submitted
that the complaint case is maintainable
even after the acceptance of the final report
in the police case.. He has relied upon the
judgement of Pramatha Nath Talukdar v.
Saroj Ranjan Sarkar, 1961 SCC OnLine
SC 155, Shivshankar Singh v. State of
Bihar, (2012) 1 SCC 130, Jatinder Singh
v. Ranjit Kaur, (2001) 2 SCC 570 and
Subrata Choudhury v. State of Assam,
2024 SCC OnLine SC 3126.

19.
Having
heard
the
rival
submissions made by both parties this
Court has carefully gone through the record
of the case.

20. The first issue for consideration
is whether a complaint would lie after
acceptance of the Final Report in a police
case on the same cause of action. A
submission of final report exonerating the
accused persons named in the F.I.R. on a
protest petition filed by a person, disputing
the findings recorded by the Investigation
Officer in its final report when the same is
decided against the complainant, who has
filed the protest petition and the final report
is
accepted.
Generally,
the
second
78 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint on the same cause of action and
the same material ought not to have been
entertained, though, there is no specific bar
for filing the second complaint. The Apex
Court in Pramatha Nath Talukdar (supra),
has observed as under:

 "50. Under the Code of Criminal
Procedure the subject of "Complaints to
Magistrates" is dealt with in Chapter 16 of
the Code of Criminal Procedure. The
provisions relevant for the purpose of this
case are Sections 200, 202 and 203.
Section 200 deals with examination of
complainants and Sections 202, 203 and
204 with the powers of the Magistrate in
regard to the dismissal of complaint or the
issuing of process. The scope and extent of
Sections 202 and 203 were laid down in
Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonker. The scope of enquiry under
Section 202 is limited to finding out the
truth or otherwise of the complaint in order
to determine whether process should issue
or not and Section 203 lays down what
materials are to be considered for the
purpose. Under Section 203 Criminal
Procedure Code the judgment which the
Magistrate has to form must be based on
the statements of the complainant and of
his witnesses and the result of the
investigation or enquiry if any. He must
apply his mind to the materials and form
his judgment whether or not there is
sufficient ground for proceeding. Therefore
if he has not misdirected himself as to the
scope of the enquiry made under Section
202, of the Criminal Procedure Code, and
has judicially applied his mind to the
material before him and then proceeds to
make his order it cannot be said that he has
acted erroneously. An order of dismissal
under Section 203, of the 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 interests 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. Allah Ditto v.
Karam Baksh Ram Narain Chaubey v.
Panachand Jain; Hansabai v. Ananda
Doraisami v. Subramania. In regard to the
adducing of new facts for the bringing of a
fresh complaint the Special Bench in the
judgment under appeal did not accept the
view of the Bombay High Court or the
Patna High Court in the cases above
quoted and adopted the opinion of
Maclean, C.J. in Queen Empress v.
Dolegobinda Das affirmed by a Full Bench
in Dwarka Nath Mandal v. Benimadhas
Banerji. It held therefore that a fresh
complaint can be entertained where there
is manifest error, or manifest miscarriage
of justice in the previous order or when
fresh evidence is forthcoming."

21. In the Full Bench Judgement of
Kolkata High Court in Dwarka Nath
Mandal vs. Beni Madhas Banerjee:
ILR1901 28 Kolkata 652, it was held that a
fresh complaint can be entertained where
there is a manifest error or manifest
miscarriage of justice in the previous order
or fresh evidence available is forthcoming.

22. Relying upon the aforesaid
judgement in Pramatha Nath Talukdar
3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
79
(supra), the Apex Court in Bindeshwari
Prasad Singh v. Kali Singh : (1977) 1 SCC
57 has held that the second complaint can
lie only on fresh facts or even on the
previous facts only if a special case is made
out.

23. In Mahesh Chand (supra), the
Apex Court has held as under:

"19. Keeping in view the settled
legal principles, we are of the opinion that
the High Court was not correct in holding
that the second complaint was completely
barred. It is settled law that there is no
statutory bar in filing a second complaint
on the same facts. In a case where a
previous complaint is dismissed without
assigning any reasons, the Magistrate
under Section 204 CrPC may take
cognizance of an offence and issue process
if there is sufficient ground for proceeding.
As held in Pramatha Nath Talukdar case
[AIR 1962 SC 876 : 1962 Supp (2) SCR
297 : (1962) 1 Cri LJ 770] second
complaint could be dismissed after a
decision has been given against the
complainant in previous matter upon a full
consideration of his case. Further, second
complaint on the same facts could be
entertained
only
in
exceptional
circumstances, namely, where the previous
order was passed on an incomplete record
or on a misunderstanding of the nature of
complaint or it was manifestly absurd,
unjust or where new facts which could not,
with reasonable diligence, have been
brought
on
record
in
the
previous
proceedings, have been adduced. In the facts
and circumstances of this case, the matter,
therefore, should have been remitted back to
the learned Magistrate for the purpose of
arriving at a finding as to whether any case
for cognizance of the alleged offence had
been made out or not."
24. In Shivshankar Singh (supra),
the Apex Court has held as under:

 "18. Thus, 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, the 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.

19. The protest petition can always
be treated as a complaint and proceeded with
in terms of Chapter XV CrPC. Therefore, in
case there is no bar to entertain a second
complaint on the same facts, in exceptional
circumstances, the second protest petition
can also similarly be entertained only under
exceptional circumstances. In case the first
protest petition has been filed without
furnishing
the
full
facts/particulars
necessary to decide the case, and prior to its
entertainment by the court, a fresh protest
petition is filed giving full details, we fail to
understand as to why it should not be
maintainable."

25. In Jatinder Singh (supra), the
Apex Court has observed as under:

"9. There is no provision in the
Code or in any other statute which debars
a complainant from preferring a second
complaint on the same allegations if the
first complaint did not result in a
conviction or acquittal or even discharge.
Section 300 of the Code, which debars a
80 INDIAN LAW REPORTS ALLAHABAD SERIES
second trial, has taken care to explain that
"the dismissal of a complaint, or the
discharge of the accused, is not an
acquittal for the purposes of this section".
However, when a Magistrate conducts an
inquiry under Section 202 of the Code and
dismisses the complaint on merits, a
second complaint on the same facts
cannot be made unless there are very
exceptional circumstances. Even so, a
second complaint is permissible depending
upon how the complaint happened to be
dismissed at the first instance."

26. In Subrata Choudhury (supra),
the Apex Court has held as under:

"10. As noted at the outset, the
question of law raised before and decided by
the High Court was whether after the
acceptance of the Final Report filed under
Section 173, Cr. P.C., upon considering the
written objection/protest petition and hearing
the complainant, a fresh complaint on the
same set of facts is maintainable or not.
There can be no two views as relates the
position that there can be no blanket bar for
filing a second complaint on the same set of
facts. We will deal with the moot question
and the aforesaid position a little later.

23. In view of the plethora of
decisions, there can be no doubt that even
when Final Report filed after investigation
based on the FIR registered pursuant to the
receipt of complaint forwarded by a Court
for investigation under Section 156 (3) of
the Cr. P.C., is accepted and protest petition
thereto is rejected, the Magistrate can still
take cognizance upon a second complaint or
second protest petition, on the same or
similar allegations or facts. But this position
is subject to conditions."

27.
Thus,
from
the
aforesaid
judgements it is crystal clear that even after
the acceptance of the Final Report and
rejection of the protest petition it is open
for the Magistrate to take cognizance upon
a second complaint or the second protest
petition, however, this position is subject to
the condition that there is subsequent
discovery of new facts or there is manifest
error or manifest miscarriage of justice.
Thus, though there is no absolute bar in
taking cognizance on the second complaint
but the same could be done only in
exceptional circumstances and not in a
routine manner. There has to be very
exceptional circumstances for entertaining
and taking cognizance on the second
complaint.

28. In the instant case, from the
perusal of the F.I.R., final report, protest
petition and the second complaint, it is
apparent that there is no special or
exceptional circumstances, which give a
subsequent
cause
of
action
to
the
complainant to file the complaint rather the
protest petition was rejected in the year,
2012 and Final Report was accepted and
the instant complaint has been filed in the
year, 2017 after a delay of more than five
years without there being any explanation
for the same. Not even a single new
circumstances has been pointed, while
filing the complaint after five years for the
same cause of action. Thus, in the facts and
circumstances of the case this Court is of
the view that the second complaint ought
not to have been entertained in the instant
case without there being any special
circumstances
warranting,
taking
cognizance on the second complaint on the
same facts.

29. Next question which has been
argued in the instant case is, since the
offence under Section 406 I.P.C. is a
continuous offence, therefore, the delay in
3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
81
filing the second complaint on the part of
the complainant would not be fatal to the
complainant. Thus, the said complaint is
maintainable. Section 406 I.P.C. reads as
under:

"Section 406 Punishment for
criminal breach of trust- Whoever commits
criminal breach of trust shall be punished
with imprisonment of either description for
a term which may extend to three years, or
with fine, or with both."

30.
The
basic
requirement
for
attracting the offence under Section 406
I.P.C. is that there should be an entrustment
on the part of the complainant with the
accused persons. In the instant case, there is
a dispute with regard to the management of
the society and the educational institution.
Both the parties are claiming their right to
manage the institutions on the basis of
succession. Thus, in the facts of the case
there can't be any entrustment by either of
the parties in favour of another. There was
continuous
civil
dispute,
which
was
contested by both the parties with regard to
management of institution continuously
upto the Apex Court. Thus, it was purely a
dispute of civil nature with regard to
management of the institution and the
society. By filing the F.I.R. in the instant
complaint case the criminal colour is being
given by the complainant to the civil
dispute with oblique motive of creating
undue pressure on the petitioners herein.
Even, if offence under Section 406 I.P.C. is
considered to be a continuous offence, the
same would not be attracted in the facts of
the
instant
case.
Therefore,
in
the
considered opinion of this Court that issue
is not required to be gone into.

31. The prosecution initiated by the
opposite party no. 2 had resulted in
submission of the Final Report, which was
duly accepted in accordance with law by
the competent court vide order 22.11.2012.
The said order has been challenged by the
opposite party no. 2 by filing the
Application under Section 482 Cr.P.C. after
more than 6 years, without even adverting
any facts with regard to delay in filing the
instant application after such a long delay.

32. So far as the instant petition
under Article 227 of the Constitution of
India filed by the petitioners is concerned,
in the instant case the complaint has been
filed by the opposite party no. 2 after more
than 12 years of the commission of the
offence. In the instant case there is no
document to show any entrustment on the
part of the opposite party no. 2 in favour of
the petitioners. Therefore, prima facie
under Section 406 I.P.C. cannot be said to
have been made out against the petitioners
herein. Further, the prosecution initiated by
lodging F.I.R. by the opposite party no. 2
has already been concluded by order dated
22.11.2012 and thereafter, after a gap of
more than 6 years the instant complaint has
been filed, which is again hit by Section
468 Cr.P.C., as the maximum punishment
for the offence under Section 406 I.P.C. is
three years. The complaint has been lodged
after full knowledge of the facts of the case
to the opposite party no. 2 after gap of six
years.

33.
The
next
question
for
consideration is whether a court can pass
the
summoning
order
mechanically,
without adverting to the facts of the case. In
Lalan Kumar Singh (supra), the following
observations have been made by the Apex
Court, which reads as under:

"38. The order of issuance of
process is not an empty formality. The
82 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation, which
reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he
shall issue process against the accused.
 52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he
thinks that it is unlikely to result in a
conviction.

53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to
the conclusion that there is prima facie
case against the accused, though the order
need not contain detailed reasons. A
fortiori, the order would be bad in law if
the reason given turns out to be ex facie
incorrect."

34. In Delhi Race Club Ltd. (supra),
the following observations has been made
by the Apex Court, which reads as under:

"23. This Court has time and
again reminded that summoning of an
accused in a criminal case is a serious
matter. Criminal law cannot be set into
motion as a matter of course. It is not that
the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate
summoning the accused must reflect that
he has applied his mind to the facts of the
case and the law applicable thereto. He
has to examine the nature of allegations
made in the complaint and the evidence
both oral and documentary in support
thereof. It is not that the Magistrate is a
silent spectator at the time of recording of
preliminary evidence before summoning
of the accused. The Magistrate has to
carefully scrutinise the evidence brought
on record and may even himself put
questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness
of
the
allegations
or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused. [See : Pepsi Foods Ltd. v.
3 All. Yogeshwar Raj Nagar & Anr. Vs. State of U.P. & Anr.
83
Special Judicial Magistrate [Pepsi Foods
Ltd. v. Special Judicial Magistrate, (1998)
5 SCC 749 : 1998 SCC (Cri) 1400] .]

31. In Mehmood Ul Rehman v.
Khazir Mohammad Tunda [Mehmood Ul
Rehman v. Khazir Mohammad Tunda,
(2015) 12 SCC 420 : (2016) 1 SCC (Cri)
124] , this Court held thus : (SCC p. 430,
para 22)

"22. ... The satisfaction on the
ground for proceeding would mean that
the facts alleged in the complaint would
constitute
an
offence,
and
when
considered along with the statements
recorded, would, prima facie, make the
accused answerable before the court. ...
In other words, the Magistrate is not to act
as a post office in taking cognizance of
each and every complaint filed before him
and issue process as a matter of course.
There must be sufficient indication in the
order passed by the Magistrate that he is
satisfied that the allegations in the
complaint constitute an offence and when
considered along with the statements
recorded and the result of inquiry or
report of investigation under Section
202CrPC,
if
any,
the
accused
is
answerable before the criminal court,
there is ground for proceeding against the
accused under Section 204CrPC, by
issuing
process
for
appearance.
Application of mind is best demonstrated
by disclosure of mind on the satisfaction.
... To be called to appear before the
criminal court as an accused is serious
matter affecting one's dignity, self-respect
and image in society. Hence, the process
of criminal court shall not be made a
weapon of harassment."

32.
The
principle
of
law
discernible from the aforesaid decision is
that issuance of summons is a serious
matter and, therefore, should not be done
mechanically and it should be done only
upon satisfaction on the ground for
proceeding further in the matter against a
person concerned based on the materials
collected during the inquiry.

33.
In
the
aforesaid
circumstances, the next question to be
considered is whether a summons issued by
a Magistrate can be interfered with in
exercise of the power under Section
482CrPC. In the decisions in Bhushan
Kumar v. State (NCT of Delhi) [Bhushan
Kumar v. State (NCT of Delhi), (2012) 5
SCC 424 : (2012) 2 SCC (Cri) 872] and
Pepsi Foods [Pepsi Foods Ltd. v. Special
Judicial Magistrate, (1998) 5 SCC 749 :
1998 SCC (Cri) 1400] , this Court held that
a petition filed under Section 482 CrPC,
for quashing an order summoning the
accused is maintainable. There cannot be
any doubt that once it is held that sine qua
non for exercise of the power to issue
summons is the subjective satisfaction "on
the ground for proceeding further" while
exercising the power to consider the
legality of a summons issued by a
Magistrate, certainly it is the duty of the
Court to look into the question as to
whether the learned Magistrate had
applied his mind to form an opinion as to
the existence of sufficient ground for
proceeding further and in that regard to
issue summons to face the trial for the
offence concerned. In this context, we
think it appropriate to state that one should
understand
that
"taking
cognizance",
empowered under Section 190CrPC, and
"issuing
process",
empowered
under
Section
204CrPC,
are
different
and
distinct. [See the decision in Sunil Bharti
Mittal v. CBI [Sunil Bharti Mittal v. CBI,
(2015) 4 SCC 609 : (2015) 2 SCC (Cri)
687] ]."

35. In the judgement of Mahboob
(supra), this Court has observed as under:
84 INDIAN LAW REPORTS ALLAHABAD SERIES

"11) In the present case, the
learned Magistrate has not conducted any
inquiry so as to satisfy himself that the
allegations in the complaint constitute an
offence and when considered alongwith the
statements recorded and the result of such
inquiry. There is ground for proceedings
against the petitioners under Section 204
CrPC. There is nothing on record to show that
the learned Magistrate has applied his mind to
arrive at a prima facie conclusion. It must be
recalled that summoning of accused to appear
the criminal court is a serious matter affecting
the dignity self-respect and image in the
society. A process of criminal court cannot be
made a weapon of harassment.

(12) Learned Magistrate has passed
a very cryptic order simply by saying that the
statement of complainant as well as witnesses
recorded under Sections 200 and 202 CrPC
are perused and accused are summoned such
order per se itself illegal which could not
stand the test of law."

36. Thus, from the aforesaid judgements
it is categorically clear that summoning of a
person is a very serious matter and ought not
to have been done in a routine manner. Before
summoning the Magistrate must satisfy
himself that there are sufficient grounds for
proceeding against the person and summoning
cannot be permitted to be done by a cryptic
order, which do not reflect the application of
mind of learned Magistrate.

37. Thus, from the perusal of the
impugned order dated 06.10.2017, passed by
learned Magistrate summoning the petitioners
herein it is apparent that the same is a cryptic
order
and
has
been
passed
without
categorically recording his satisfaction and
assigning any reason or its satisfaction whether
the offence under Section 406 is made out.
Since, in the previous F.I.R. filed by the
opposite party no.2 a Final Report was
submitted which was protested by the opposite
party no.2, which was rejected by the court
concerned and after delay of more than five
years, the instant complaint has been filed on
the same set of facts without there being any
special circumstances warranting the second
complaint to be entertained.