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TMI Blog1986 (3) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner were also supplied to the petitioner by the respondent. The petitioner resigned from the service of the respondent, vide his letter dated October 8, 1982, which was accepted. However, the petitioner did not surrender peaceful and vacant possession of the premises to the respondent-company. He did not even return the articles of furniture and air-conditioner, etc., as stipulated. The petitioner was summoned by an Additional Chief Metropolitan Magistrate to face trial for the aforesaid offence. Notice under section 251 of the Code was duly served on him on April 12, 1983. The case was then adjourned to August 12, 1983, for evidence of the respondent-complainant. In the meanwhile, however, an application was moved on behalf of the respondent on August 5, 1983, for permission to withdraw the complaint. It was contended that due to inadvertence/ oversight, the court had not examined the complainant under section 200 of the Code which was mandatory in the case of a private complaint before issuing process against the accused, i.e. , the petitioner. So it sought permission to withdraw the complaint in order to remove the said defect with liberty to file a fresh complaint. Indee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage and as such the Magistrate could only act under the provisions embodied in Chapter XX of the Code which prescribes the procedure for the trial of summons cases by the Magistrates. So, according to him, once the learned Magistrate found that there was sufficient ground for grant of permission to withdraw the complaint, he was left with no option but to acquit the accused. At any rate, it has been urged vigorously by him that the Magistrate had no jurisdiction to permit the complainant to file a fresh complaint on the same subject-matter/with regard to the same cause of action, for there is neither any provision in the Code (like those of Order XXIII of the Code of Civil Procedure) empowering a Magistrate to grant permission to file a fresh complaint nor does any such power inhere in a criminal court. Still worse, the learned Magistrate did not even care to issue notice of the application made by the complainant for withdrawal before disposing of the same. Thus, he did not afford any opportunity to the petitioner to be heard on the point and such a procedure too is abhorrent to criminal jurisprudence and the concept of rule of law to which we are wedded. Section 257 lays down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Manifestly, the section is mandatory and the requirement as to the examination of the complainant and his witnesses, if any, present in court, should be strictly complied with. It is for this simple reason that the Magistrate must verify facts alleged in the complaint before he proceeds further in the matter either under section 202 or 203 or 204 of the Code. He has to judicially determine whether a case is made out for issuing process. However, the question would arise whether non-compliance with the said provision would vitiate the subsequent proceedings/trial of the accused or whether it would be merely an irregularity curable under section 465 of the Code. Sections 460 to 464 deal with particular kinds of irregularities and their effect on proceedings. Section 465, however, is residuary. It provides that subject to those provisions, no omission, error or irregularity in any proceeding will entail a reversal, or alteration in appeal to revision of any finding, sentence or order, unless such error, omission or irregularity has, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such a nature, then the proceedings are vitiated in their very inception and section 537 has no application but the mere fact that a certain provision of the Code is imperative does not itself indicate that a breach of the provision vitiates the whole proceedings: Bechu Chaube v. Emperor, AIR 1923 All 81" I am in respectful agreement with the view expressed by the learned judge. Reference in this context may also be made with advantage to Bharat kishore Lal Singh Deo v. Judhistir Modak, AIR 1929 Patna 473 [FB], Mehr Chiragh Din v Emperor, AIR 1924 Lah 258, Ambayara Goundan Pachamuthu Goundan, AIR 1924 Mad 587 (1), and V. M. Abdul Rahman v. King-Emperor, AIR 1927 PC 44. The latter authority is important for the proposition that non-compliance even with a mandatory provision of law would not by itself constitute an illegality vitiating the trial and conviction of the accused. Looking at the matter from this angle, there was no sufficient ground for granting permission to withdraw the complaint. However, the fact remains that the learned Magistrate took the view that the trial was vitiated by a serious irregularity which went to the root of the matter and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the offence alleged to have been committed by him. However, the bar contained in section 300 of the Code is sought to be invoked on the ground of "deemed acquittal" in view of the mandatory language of section 257. It may be pertinent to notice in this context that the Explanation to section 300 expressly provides that dismissal of a complaint or discharge of an accused is not an acquittal for the purposes of that section. It is for this simple reason that dismissal of a complaint is not at par with the finding of acquittal in a regular trial. In certain circumstances, therefore, a fresh petition or complaint for the same offence is entertainable. For instance, in Pramatha Nath Tauklukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, it was held that (headnote): "An order of dismissal under section 203 of the Criminal Procedure Code is 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......" Adverting to this decision, it was observed by the Supreme Court in Bindeshwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. Immediately after the submission of the final report, the complainant submitted a naraji petition and the learned Magistrate, without examining the naraji, directed that a judicial enquiry be held into the complaint. Some evidence was taken at the enquiry and eventually the petitioners, who were the persons accused . of the offence, were summoned and put on trial. The trying Magistrate discharged them on the ground that there had been a defect in the proceedings in that the examination of the complainant had not been made before issuing the process. Thus, there was infringement of the mandatory provisions of section 200. Realising this position, the learned Magistrate held that the proceedings had no foundation in law. So, without referring to the merits of the matter, he made an order of discharge. Thereupon, a fresh complaint was filed before the Sub-Divisional Magistrate on identical facts. Under these circumstances, it was urged that the second trial of the petitioners for the same offence was barred under section 403 of the old Code. This contention was repelled by the learned judge who observed as under (at page 395): "When the naraji petition was filed, it was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was pressed into service by the accused on the basis of the previous acquittal but the same was repelled by the High Court. In appeal by certificate, the Supreme Court upheld the view taken by the High Court. The following observations of the Supreme Court are very pertinent to note (at page 71): "In the case before us, Mr. Ganguly took the view, though erroneously, that as one of the conditions requisite for taking cognizance of the offence was not satisfied, he had no jurisdiction over the matter. Having come to that conclusion he had no option but to put a stop to those proceedings. It appears, however, that he felt that having already framed a charge, the only manner in which he could put an end to the proceedings was by making an order of acquittal. It requires, however, no argument to say that only a court which is competent to initiate proceedings or to carry them on can properly make an order of acquittal, at any rate, an order of acquittal which will have the effect of barring a subsequent trial upon the same facts and for the same offence" . Their Lordships further observed (at page 72); "It is true that Mr. Ganguly could properly take cognizance of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tan Magistrate in the previous complaint cannot operate as an acquittal within the meaning of section 257 so as to bar subsequent prosecution of the petitioner on the same facts. It, however, bears repetition that the learned Additional Chief Metropolitan Magistrate was not competent to permit the complainant to file a fresh complaint on the same cause of action. Reference in this context may be made with advantage to G. K. Mazumdar v. Mo hmad Kasam Mirza [1967] Crl LJ 60 and Kashi Prasad v. Emperor, AIR 1947 All 370. In the latter case, the Magistrate had returned the complaint to the complainant, viz ., Inspecting Assistant Commissioner of Income-tax. It was held by a Division Bench of the Allahabad High Court that (at page 372): "The order of the Magistrate for the return of the complaint was an order not contemplated by the Criminal Procedure Code. The court has no jurisdiction to return the complaint. The order was, therefore, an invalid order and, as such, can have no effect" . To sum up, therefore, there can be no shadow of doubt that the order made by the learned Additional Chief Metropolitan Magistrate on August 5, 1983, in the previous complaint was not warra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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