Kirit Shantilal Hirani v. Daulatrai Chhaganlal Hirani

ORDER

1. The petition is filed to challenge the judgment and order of the Sessions Court, Dindoshi, Bombay, which is delivered in Criminal Revision Application no.89 of 2010. Both the sides are heard. Pvr

2. wp1524-11.sxw The petitioner had filed private complaint against the respondent no.1 for the offence punishable under Section 406 of I.P.C. The case of the petitioner is that his father had kept an amount of Rs.16,20,000/- with the accused in his custody and that amount was to be distributed amongst the complainant and his brothers. The father of complainant was suffering from heart disease and so this arrangement was made. It is contended that the amount was given prior to year 1988. It is the case of the complainant that he was entitled to get Rs.5,40,000/- from the accused and similarly his two brothers were entitled to get similar amount. It is contended that amount of Rs.1,78,000/- was given by the accused to Shri.Bharat Hirani, a brother of the complainant for discharge of aforesaid obligation, but the amount was not paid to the complainant and his other brother.

3. The complainant approached police on 2.5.2002 and he gave report. The police did not take any action. Then private complaint was filed which was given number as C.C.no.75/SW of 2005 in the Court of M.M., Borivali. After issuing process, the evidence before charge came to be recorded. As the complainant did not turn up for many dates, after considering the evidence given before the charge, the M.M. Court discharged the accused. Pvr

4. wp1524-11.sxw The complainant then filed one more private complaint which was given number as 312/M/2006, in the same same Court. The Magistrate made order under Section 202 of Cr.P.C. and the concerned police station was directed to investigate and submit report. After considering the report of the police, the Metropolitan Magistrate issued process for offence under Section 406 of IPC and this order is set aside by the Sessions Court in Criminal Revision application no.89 of 2010.

5. It is mainly the submission for respondent-original accused that the complainant ought to have challenged the decision of M.M. by which the accused was discharged, by filing revision. It was submitted that no new or additional material at all was there with the complainant and so the M. Magistrate ought not to have entertained the second private complaint. It was also submitted that the amount was allegedly given in the year 1988 and first time the complainant approached the police in the year 2002. It was submitted that even if the date of report viz.2002 is considered as cause of action, the complaint ought to have been filed within three years from this date in view of the provisions of Section 468 of Cr.P.C. For the petitioner it was submitted that as the accused was discharged there was no bar to fresh complaint. It was submitted that as the Magistrate has issued process on the basis of material collected by the police and given by the complainant, the Revisional Court ought not to have interfered in the order of issue of process. Pvr

6. wp1524-11.sxw Though in strict sense, there is no bar of Section 300 of Cr.P.C. when the accused is discharged in such a case, ordinarily the procedure laid down in Cr.P.C. needs to be followed when the accused is discharged under Section 245(1) of Cr.P.C., after considering the evidence given before the Charge.

7. Section 204 of Cr.P.C. shows that if the Magistrate forms opinion that there is sufficient ground for proceeding against the accused then he can issue process. In the case reported at AIR 2000 SC 1456 (U.P. Pollution Control Board. Vs. M/S Mohan Meakins Ltd. And Others), the Apex Court has laid down that no detail order is expected from the Magistrate under Section 204 of Cr.P.C. This section is similar to the provisions of Section 245(1) of Cr.P.C. only in one respect, that the probable defence of the accused is ordinarily not to be considered. Section 245(1) of Cr.P.C. reads thus:- “245. When accused shall be discharged- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.” Pvr wp1524-11.sxw The section shows that when the Magistrate is making order of discharge, he is required to consider all the evidence given under Section 244 of Cr.P.C. for coming to the conclusion that such evidence if considered unrebutted, would not lead to conviction. Thus, the order made under Section 245(1) has to be reasoned order and in such order the entire relevant evidence given under Section 244 of Cr.P.C. is required to be considered.

8. In view of the difference between the aforesaid two provisions, it becomes necessary for the Magistrate who entertains second complaint for the same offence to see whether any additional material than which was before the previous Magistrate at the time of passing of discharge order, is available and such material is so important that on the basis of it, necessity arises to proceed against the accused again for the same offence.

9. The comparison of the material which was before the previous Magistrate and which is now considered in the fresh complaint shows that same allegations were there in the past and the same material was there before the Magistrate. In such circumstance, the Magistrate should not have issued process. Ordinarily, the Magistrate is not expected to give reasons when order of issue of process is made, but in a case like present one, it becomes necessary for the Magistrate to compare the material which was available before the court when discharge order was made, and the material Pvr wp1524-11.sxw which is made available to him in the fresh complaint. The order of the Magistrate does not show that such comparison was done.

10. It can be said that a fresh complaint can also be entertained when there has been manifest miscarriage of justice. So the material needs to be considered by the Magistrate and he must get satisfied that there has been manifest miscarriage of justice and so it has become necessary to re- hear the case though the material is the same. This is also not done by the Magistrate. If after every discharge order, fresh complaints are allowed in the cases like the present one, there will be unnecessary harassment of the opposite side and that will be giving free hand to the persons like the petitioner to abuse the process of law. So this Court holds that no order of issue process could have been made in the present case.

11. One more point is involved in the present case and that is also not considered by the Magistrate. The complainant first approached the police on 2.5.2002 and even if this date is considered as the date of cause of action, the fresh complaint ought to have been filed within three years from this date. The complaint came to be filed on 22.12.2006. Thus, there is bar of provision of Section 468 of Cr.P.C. which has prescribed the period of limitation for taking cognizance for such offence. For this reason also the order made by the Magistrate cannot sustain in law. Pvr wp1524-11.sxw

12. For the petitioner one case reported at “AIR 2003 Supreme Court 702 (Mahesh Chand Vs. B.Janardhan Reddy & Another)” was cited. The facts of the case show that a private complaint was dismissed by the Magistrate under Section 203 of Cr.P.C. and in view of the facts of that case, the Court held that the second complaint was tenable. It is observed that there is no statutory bar in filing second complaint on the same facts. This Court has observed that even when there is discharged under Section 245 of Cr.P.C., there is no statutory bar in filing second complaint, but the Court must follow the aforesaid procedure before issuing process in the second complaint. Further, the dismissal of the Complaint under Section 203 of Cr.P.C. cannot be treated on the same footing like the discharge of accused under Section 245(1) of Cr.P.C. When there is no prima facie case made out, the complaint can be dismissed under Section 203 of Cr.P.C, but the discharge order is made when all the material is produced before the Magistrate and the witnesses are examined for giving evidence before the charge. All this evidence is required to be considered as un-rebuted and discharge order is made when such evidence is not sufficient for conviction. Thus, this stage has different significance in law and so the aforesaid procedure needs to be followed by the Magistrate. In the case cited Supra for the petitioner also the Apex Court has observed that the second complaint can be entertained after dismissal of first complaint under Section Pvr wp1524-11.sxw 203 of Cr.P.C. where there is manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. The Apex Court has made it clear that special case needs to be made out by the complainant by showing the exceptional circumstances.

13. For respondent 2 cases were cited like (I) AIR 1962 Supreme Court 876 (Pramatha Nath Talukdar & Anr. Vs. Saroj Ranjan Sarkar), (II) 2009 Cri.LJ 3185 (Bombay High Court) (Sesa Goa Ltd. & Ors. Vs. State of Maharashtra & Anr.). The first case is referred by the Apex Court in the case of “Mahesh Chand” cited supra and the relevant observations are already quoted. The second case is on the point of limitation. This point is also discussed. In view of the aforesaid facts and circumstances, this Court holds that no case is made out for interference in the decision of the Sessions Court given in the Revision. Nothing can be achieved by admitting the petition. So petition stands rejected. (T.V.NALAWADE, J.)