Bombay High Court
PRABHAT RAMRICHPAL JHUNJHUNWALAversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Dismissed
Holding
The High Court dismissed the application, holding that the second complaint was a valid proceeding under Chapter XV of the CrPC and the magistrate’s order issuing process was lawful.
Summary
The applicant, Prabhat Jhunjhunwala, sought to quash the issuance of process against him under IPC sections 465 and 471 and the dismissal of his criminal revision, alleging that the underlying complaint was a second complaint on the same facts and that the magistrate erred by treating it as a fresh case. The dispute arose from an alleged forged board meeting notice of a family company, leading to a first complaint (CC No. 03/SW/2018) where the magistrate rejected the request for police investigation under Section 156(3) of the CrPC, and a second complaint (CC No. 08/SW/2019) filed thereafter under Chapter XV of the CrPC. The trial magistrate directed an enquiry under Section 202, accepted the hand‑writing expert’s report and issued summons. The applicant argued lack of prima facie case of forgery and that the second complaint was barred. The High Court held that the first complaint sought only Section 156(3) relief, the second complaint was a proper proceeding under Chapter XV, and the magistrate had correctly exercised his discretion. Consequently, the application under Section 482 (now 528 of the Bharatiya Nagarik Suraksha Sanhita) was dismissed.
Issues considered
- The second complaint is barred as a duplicate of the first complaint filed on the same facts.
- Whether the magistrate erred in issuing process under IPC sections 465 and 471 without a prima facie case of forgery.
- Whether the rejection of an application under Section 156(3) precludes filing a complaint under Section 200/202.
- Whether the High Court exercised jurisdiction under Section 482/528 to quash the orders.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 528
- Code of Criminal Procedure, 1973 — s. 156(3), 190, 200, 202, 203, 204, 245, 482
- Indian Penal Code — s. 120-B, 409, 461, 465, 468, 471
Subjects
- forgery
- criminal revision
- Section 156(3)
- Section 200
- Section 202
- second complaint
- Criminal Procedure Code
- Section 482
- Bharatiya Nagarik Suraksha Sanhita
- corporate dispute
- handwriting expert
Judgment
SAGAR MAGAR APL-1528-2023.doc
S
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1528 OF 2023
1. Prabhat Ramrichpal Jhunjhunwala
Age-53 years, Occ:-Business
R/at:- Flat No. 361, Siddhesh Jyoti,
Building “F” Wing, Balaram Street,
Mumbai-400 005 … Applicant
V/s.
1. The State of Maharashtra
2. Omprakash Ramchrichapal Jhunjhunwala
Age-56 years, Occ:- Business
R/at-Parasrampuria Bhavan
270, Walkeshwar Road,
Mumbai-400 006 … Respondents
______________________
Mr. C. K. Pendse a/w Ms. Siddhi Bhosale, Mr. Atharva Jagtap for Applicant.
Ms. Sangita Phad, APP for the Respondent/State.
Mr. Rushikesh Kekane i/by Adv. S. C. Kekane for Respondent No.2.
______________________
CORAM : RANJITSINHA RAJA BHONSALE, J.
RESERVED ON : 8th JULY 2026.
PRONOUNCED ON : 5th OCTOBER 2026.
JUDGMENT :-
1) By the present Application, under Section 482 of the Code of
Criminal Procedure, 1973 (For short ‘CrPC’) (now 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023), the Applicant seeks to quash and set aside
the impugned Orders dated 3 rd November 2023 passed by the learned
Additional Sessions Judge, Greater Bombay in Criminal Revision Application
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No. 271 of 2020 whereby the Applicant’s Revision Application was dismissed
and the impugned Order of issuance of process dated 19 th December 2019
passed by the Metropolitan Magistrate’s 40 th Court at Girgaon, Mumbai in CC
No. 08/SW/2019 was confirmed.
1.1) By an Order dated 12th December 2023, a notice was issued to the
Respondents and the proceedings before the learned Magistrate were stayed.
The Application is finally heard at the admission stage with the consent of the
parties.
2) Heard Mr. C. K. Pendese, learned Counsel appearing for the
Applicant, Ms. Sangita Phad, APP for the Respondent/State and Mr. Rushikesh
Kekane for Respondent No.2.
3) The facts, as alleged are as under:-
3.1) The Applicant and Respondent No.2 are brothers. In the year
1992, they had formed a company namely “Unicom Skytech Limited”. The
father of the Applicant namely Mr. Ramrichpal Jhunjhunwala, Respondent
No.2 and the Applicant were Directors of the company. Mr. Ramrichpal
Jhunjhunwala occupied the position of the chairman. A notice dated 26 th
November 2014 was issued for a board meeting of the company scheduled to
be held on 6th December 2014. It is the case of Respondent No.2 that, the said
notice was served upon the Applicant.
3.2) In the proceedings before the National Company Law Tribunal,
the Applicant filed an Affidavit dated 27 th February 2017, wherein he relied on
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the copy of the notice dated 26 th November 2014, which notice, according to
Respondent No.2 was never issued by the company. That, the notice which
was relied upon by the Applicant was a false and fabricated document created
by the Applicant.
3.3) That, the original notice dated 26 th November 2014 has only 6
items on the agenda. Further, while the notice relied upon by the Applicant
does not contained the item at agenda No.4 and that, the item at agenda No.6
has been replaced by agenda No.4. That, the Applicant has caused a signature
like that of their father’s signature or has caused it with others. That, the
forged and fabricated notice was received by the company on 27 th February
2017. The Respondent No.2 relied upon the opinion of the hand writing
expert Ms. Hiral Mehta.
3.4) That, a written complaint dated 21 st June 2017 was filed to Sr. PI
Malbar Hill Police Station against the Applicant, wherein after an enquiry
being conduced, it was concluded by the Investigating Authorities that, the
dispute is of a civil nature and the same is sub-judice before the Company Law
Board. Respondent No.2 and his father then addressed a complaint dated 7 th
November 2017 to the Government of Maharashtra, copies thereof were given
to the Commissioner of Police and the Additional Commissioner of Police,
Mumbai. The Malabar Hill Police Station after conducting an enquiry vide
letter dated 29th December 2017, informed the father of Respondent No. 2
that, the earlier enquiry conducted by the Investigating Authorities was
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proper.
3.5) Mr. Ramrichpal Jhunjhunwala, filed a complaint against the
Applicant and one Mr. Jitendra Rathod bearing complaint No. 03/SW/2018.
The learned Metropolitan Magistrate, 40th Court, Girgoan by Order dated 27th
February 2018 was pleased to dismiss the said complaint. Mr. Ramrichpal
Jhunjhunwala preferred a Revision Application bearing No. 490 of 2018
challenging the Order dated 27 th February 2018. During the pendency of the
Revision Application, Mr. Ramrichpal Jhunjhunwala passed away. Respondent
No.2 filed a Miscellaneous Application with a prayer to conduct the
proceedings and for substitution. The said Application was allowed.
3.6) By Order dated 31st December 2018, the Revision Application
came to be dismissed. In the said Order, at paragraph 13, the following
observations are made:-
“...be that as it may if the complainant wants to file the complaint
case then he can do it even now also irrespective of impugned order
because, his application for prayer to direct investigation u/s.
156(3) of Cr.P.C. only is rejected. He did not consent for treating the
case as complaint case for proceeding under section 200 of the
Cr.P.C. As such, in fact there was no complaint case at all. There was
only an application to direct investigation u/s. 156(3) of Cr.P.C. and
the same is rejected. The complaint is not barred by limitation.
Thus, there is no need for this Court to direct the Magistrate to
restore the complaint on his file. The revisionist can file fresh
complaint case.”
3.7) Respondent No.2 filed a complaint. The Respondent No.2’s
verification statement came to be recorded on 1 st March 2019, after which
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the evidence of the Hand Writing Expert was recorded. The learned
Magistrate vide Order dated 17th June 2019 directed the Malabar Hill
Police Station to conduct an enquiry as per Section 202 of the Code of
Criminal Procedure. An enquiry report dated 19 th October 2019 was
submitted by the Malabar Hill Police Station. Vide Order dated 19 th
December 2019, learned Metropolitan Magistrate, 40 th Court, Girgaon,
Mumbai was pleased to issue process against the Applicant for an offence
punishable under Section 465, 471 of the Indian Penal Code.
3.8) The Applicant preferred a Criminal Revision Application No.
271 of 2020 challenging the Order dated 19 th December 2019. The learned
Sessions Court after hearing the parties, by Order dated 3 rd November
2023 was pleased to dismiss the Applicant’s Criminal Revision Application.
The Orders dated 19th December 2019 passed by the learned Magistrate
and the Order dated 3rd November 2023 passed by the Sessions Court are
impugned in this Application.
4) Mr. C. K. Pendse, learned Advocate appearing for the Applicants
submits that:-
4.1) Both the impugned Orders i.e. Order dated 19 th December 2019
and 3rd November 2023 indicate a total non application of mind and are
unreasoned Orders. That, the Courts below failed to consider the fact that, the
father of Respondent No.2 had filed complaint bearing CC No.3/SW/2018
before the Magistrate’s Court seeking directions under Section 156(3) of the
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Code of Criminal Procedure. By an Order dated 27 th February 2018, the
learned Magistrate was pleased to conclude that, the allegations arise out of a
civil dispute and do not disclose any cognizable offence. The said finding has
been confirmed by the Sessions Court vide Order dated 31 st December 2018
passed in Criminal Revisions Application No. 490 of 2018 and has attained
finality.
4.2) The Order dated 19th December 2019, erred in reversing the
findings when no new material is brought on record. That, Order dated 27 th
February 2018 passed in CC No. 3/SW/2018 had categorically observed that
the opinion of the private Hand Writing Expert cannot be considered as same
is based on a mere copy of the alleged forged document. That, the original
document was not produced for comparison. That, based on the very same
hand writing expert’s opinion, the learned Magistrate in CC No. 08/SW/2019
while taking a completely contrary view has issued process against the
Applicant. The learned Sessions Court while hearing the Revision Application
has not considered the said fact. That, the same indicates a total non-
application of mind and non-appreciation of the correct facts. The present
complaint therefore is nothing but a second complaint filed on the same facts
and on the same material. The second complaint on the same facts can be
entertained only in exceptional circumstances such as when the previous
Order is passed on incomplete record, or on a misunderstanding of the nature
of the complaint or the Order is manifestly absurd, unjust or where new facts
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which could not, with reasonable diligence have been brought on the record
in the previous complaint. That, in the present matter none of the conditions
are fulfilled by Respondent No.2. That, on the same material the earlier
complaint bearing CC No. 03/SW/2018 was rejected. That, learned Sessions
Court has erred in observing that, the first complaint was not dismissed on
merits. That, the findings of the learned Sessions Judge are incorrect.
4.3) In the first complaint, it was specifically contended that, the
learned Magistrate is required to pass an Order under Section 156(3) and not
adopt the other course i.e. examination of the Complainant and witnesses
under Section 200 of the Code of Criminal Procedure. The said complaint was
dismissed. The said fact has been considered by the Sessions Court in its
Order dated 31st December 2018.
4.4) That, there is no prima facie case made out against the Applicant
under Section 465 and 471 of the Indian Penal Code. That, the essential
ingredients of forgery are not even made out.
4.5) That, there are various civil disputes pending between the parties
which are subjudice before the Company Law Board. That, the Respondent
No.2 had earlier filed Criminal Complaint bearing CC No. 154/SW/2009
before the Metropolitan Magistrate, 18th Court at Girgaon under Section 409,
461, 468, 471 and 120-B of the Indian Penal Code. That, the said complaint
was dismissed by the learned Magistrate vide Order dated 21 st February 2009
and has been confirmed by Sessions Court by Order dated 20 th March 2010
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and by this Court by Order dated 29th June 2011.
5) Mr. Rushikesh Kekane, learned Advocate appearing for the
Respondent No.2 submits that:-
5.1) The factual background of the matter including the previous
complaint bearing CC No. 3/SW/2018 and the Order passed in Criminal
Revision Application No. 490 of 2018 dated 31 st December 2018 have been
considered by the learned Magistrate while passing Order dated 19 th
December 2019. That, the complaint was filed on the basis of the liberty
granted by the Sessions Court.
5.2) Pursuant to the complaint, recording of the verification of the
complainant and the evidence of the hand writing expert, an enquiry was
conducted. The Applicant was given an opportunity of being heard, after
which, the summons was issued against the Applicant in respect of
commission of offence under Section 465 and 471 of the Indian Penal Code.
5.3) The Application of mind of the Magistrate is reflected in the
Order. That, the case was dismissed against the Accused No.2 for want of
sanction.
5.4) The Order dated 3rd November 2023 also considers the factual
aspects and the provisions of law. The Orders specifically hold that, the first
complaint was neither dismissed on merits nor the Magistrate proceed with
the complaint under Chapter XV of the Code of Criminal Procedure. The
learned Sessions Court did not direct the learned Magistrate to treat the
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Application under Section 156(3) of CrPC, where the learned Magistrate has
issued process.
5.5) It is pertinent to note that, in the first complaint, the Complainant
had sought relief under Section 156(3) of the CrPC and whereas in the second
complaint he prayed for proceedings against the accused under Chapter XV of
the CrPC.
6) Ms. Sangita Phad, learned APP appearing for the State adopted
the arguments advanced by Mr. Rushikesh Kekane, learnd Advocate for the
Respondent No.2.
7) Perused the entire record. The main contention of the learned
Advocate for the Applicant is that, after passing the initial Order dated 27 th
February 2018, where the complaint bearing No. 03/SW/2018 was dismissed,
the Complainant was directed to proceed with the complaint under Section
200 of the CrPC, the Complainant had preferred a revision application which
was dismissed by Order dated 31st December 2018. The Order dated 31st
December 2018 observes that only the application under Section 156(3) of
the CrPC is rejected and the Complainant could file a fresh complaint case.
8) Perusal of the Order dated 27th February 2018 rejects the prayer
for an Order dated 27th February 2018, rejects the prayer for an Order under
Section 156(3) of CrPC and disposed of the proceedings. The operative part of
the Order reads as under:-
“i . The prayer for order under section 156(3) of the Code of
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Criminal Procedure is hereby rejected.
ii . The proceeding be disposed off accordingly.”
By the said Order proceeding CC No. 3/SW/2018 was disposed of.
9) The original complainant, i.e. Ramrichapal B. Jhunjhunwala, filed
a Revision Application No. 490 of 2018, during the pendency of which he
expired and therefore the Respondent No. 2 was brought on record. Learned
Sessions Judge, after hearing the parties, by an Order dated 31 st December
2018, was pleased to dismiss the Revision Application with the following
observations:-
“13. When a complaint is filed before the Magistrate, he has two
options i.e. 1) to direct investigation u/s. 156(3) of Cr.P.C. or, 2) to
take cognizance of the offence and to proceed under section 200,
202 of Cr.P.C. etc. I have held that in this case, the investigation by
police is not necessary and hence, the Magistrate has rightly
exercised his discretion not to send the complaint for investigation
by the police. The other course was to treat the complaint as
complainant case. However, the impugned order recites that the
complainant himself was not willing for that course. In such
circumstances, there was no other course for the Magistrate except
to drop the proceedings. Before this court, the revisionist is raising
hue and cry that the Magistrate should have considered the legal
position that the rejection of the prayer to direct the investigation
u/s. 156 (3) of Cr.P.C., does not interdict to take the recourse of
section 200 or 202 of Cr.P.C. However, the impugned order shows
that the complainant himself was not ready for that course and now
he is making retreat. Be that as it may, if the complainant wants to
file the complaint case then he can do it even now also irrespective
of impugned order because, his application for prayer to direct
investigation u/s. 156(3) of Cr. P.C. only is rejected. He did not
consent for treating the case as complaint case for proceeding
under section 200 of Cr. P. C. As such, in fact there was no
complaint case at all. There was only an application to direct
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investigation u/s. 156(3) of Cr. P. C. and the same is rejected. The
complaint is not barred by limitation. Thus, there is no need for this
Court to direct the Magistrate to restore the complaint on his file.
The revisionist can tile fresh complaint case. In view of these
observations, I answer this point in the affirmative and pass the
following order-
ORDER
The revision is dismissed.”
10) While dismissing the Revision Application, it is observed that, the
Complainant himself was not ready for taking recourse under Sections 200 or
202 of CrPC. It is further observed that, if the Complainant wants to file a
complaint case, he can do so irrespective of the impugned Order dated 27 th
February 2018 because only his application for prayer to direct investigation
under Section 156(3) of the CrPC was rejected. It is further observed that the
Complainant did not consent for treating the case as a complaint case for
proceeding under Section 200 of the CrPC and that, as such, there was no
complaint case at all. It is further observed that, as the complaint was not
barred by limitation, there was no need for the Court to direct the Magistrate
to restore the complaint to file. It was observed that the Complainant could
file a fresh complaint case. In this background, the present Complainant, i.e.
Omprakash Jhunjhunwala (Son of the Original Complainant), preferred
complaint case No. 08/SW/2019.
11) The Statement of the Complainant was recorded on oath as per
Section 200 of CrPC. The evidence before process of CW-1, i.e. Mr. Hiralal A.
Mehta (handwriting expert), was also taken. After considering the statement
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of the Complainant, the evidence before process, and after hearing the
Advocate for the Complainant, the Metropolitan Magistrate’s Court directed
an enquiry under Section 202 of CrPC to ascertain the role of Accused No. 1 in
respect of the crime of forgery. The following Order was passed:-
“ORDER
Malbar Hill Police station is directed to enquire into role of
accused no.1 as regards alleged crime of forgery.
Further Order
It is directed by way of caution that enquiry as regards
alleged crime be entrusted to any police officer other than accused
no.2 of this case. The concerned clerk shall forward copy Exh.1 in
this case to the Malbar Hill Police Station.”
12) The enquiry report, being Exhibit-6, was filed on 19 th October
2019. The Complainant was heard. After hearing the parties, the learned
Magistrate was pleased to issue summons to Accused No. 1 in respect of
commission of offences punishable under Sections 465 and 471 of the IPC.
13) The Order dated 19th December 2019 was challenged by the
present Applicant by filing a Criminal Revision Application No. 271 of 2020.
The learned Sessions Court, after hearing the parties, by Order dated 3 rd
November 2023, dismissed the Revision Application with the following
observations:-
“11. It is matter of record that the first complaint of complainant
was not dismissed on merits therein the learned Magistrate refused
investigation to be done by police. Learned Magistrate in the first
complaint itself could have proceeded under Chapter XV of the
Code of Criminal Procedure but he failed to do so. Sessions Court
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also did not direct the learned Magistrate to treat application under
Section 156(3) of the Code of Criminal Procedure as a complaint
case. Thereafter, complainant filed complaint case under Chapter
XV of the Code of Criminal Procedure wherein learned Magistrate
was pleased to issue process against applicant/accused under
Sections 465 and 471 of IPC as the court prima facie found
sufficient ground to proceed against accused in the said complaint
case. The argument of applicant/revisionist that second complaint
on same fact is not tenable, is devoid of merits in as much as in first
complaint, complainant sought relief under Section 156(3) of
Cr.P.C. whereas in second complaint he prayed for proceedings
against accused under Chapter XV of Cr.P.C. Learned Magistrate did
not commit any error in proceeding against accused under Section
200 of Cr.P.C. Further the order of issuance of process against
applicant/accused under Sections 465 and 471 of IPC does not
appears to be erroneous. Applicant/revisionist has every right to
seek his discharge under Section 245 of Cr.P.C. In view of above
said, the instant revision is liable to be dismissed. Hence, I answer
point No.1 in affirmative and proceed to pass the following order:
ORDER
Criminal Revision Application No.271 of 2020 is dismissed.”
14) The learned Sessions Court recorded a finding that, in the first
complaint, relief was sought under Section 156(3) of the CrPC, whereas in the
second complaint, prayers for proceeding against the accused were under
Chapter XV of CrPC. In that view of the matter, it was observed that the Order
dated 19th December 2019 was proper and in accordance with law. The said
Order dated 3rd November 2023 is challenged by the Applicant before this
Court.
15) At this point, it is necessary and would be extremely useful to
refer to certain judgments of the Hon’ble Supreme Court and Allahabad High
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Court in this regard.
15.1) The Hon’ble Supreme Court in the case of Devarapally
Lakshminarayana Reddy v. V. Narayana Reddy, reported in (1976) 3 SCC 252
has observed that :-
“17. Section 156(3) occurs in Chapter XII, under the caption :
“Information to the Police and their powers to investigate”; while
Section 202 is in Chapter XV which bears the heading: “Of
complaints to Magistrates”. The power to order police
investigation under Section 156(3) is different from the power to
direct investigation conferred by Section 202(1). The two operate
in distinct spheres at different stages. The first is exercisable at the
pre-cognizance stage, the second at the post-cognizance stage
when the Magistrate is in seisin of the case. That is to say in the
case of a complaint regarding the commission of a cognizable
offence, the power under Section 156(3) can be invoked by the
Magistrate before he takes cognizance of the offence under
Section 190(1)(a). But if he once takes such cognizance and
embarks upon the procedure embodied in Chapter XV, he is not
competent to switch back to the pre-cognizance stage and avail of
Section 156(3). It may be noted further that an order made under
sub-section (3) of Section 156, is in the nature of a peremptory
reminder or intimation to the police to exercise their plenary
powers of investigation under Section 156(1). Such an
investigation embraces the entire continuous process which begins
with the collection of evidence under Section 156 and ends with a
report or charge-sheet under Section 173. On the other hand,
Section 202 comes in at a stage when some evidence has been
collected by the Magistrate in proceedings under Chapter XV, but
the same is deemed insufficient to take a decision as to the next
step in the prescribed procedure. In such a situation, the
Magistrate is empowered under Section 202 to direct, within the
limits circumscribed by that section an investigation “for the
purpose of deciding whether or not there is sufficient ground for
proceeding”. Thus the object of an investigation under Section
202 is not to initiate a fresh case on police report but to assist the
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Magistrate in completing proceedings already instituted upon a
complaint before him.
18. In the instant case the Magistrate did not apply his mind to
the complaint for deciding whether or not there is sufficient
ground for proceeding; but only for ordering an investigation
under Section 156(3). He did not bring into motion the machinery
of Chapter XV. He did not examine the complainant or his
witnesses under Section 200 CrPC, which is the first step in the
procedure prescribed under that chapter. The question of taking
the next step of that procedure envisaged in Section 202 did not
arise. Instead of taking cognizance of the offence, he has, in the
exercise of his discretion, sent the complaint for investigation by
police under Section 156.
19. This being the position, Section 202(1), first proviso was not
attracted. Indeed, it is not necessary for the decision of this case to
express any final opinion on the ambit and scope of the first
proviso to Section 202(1) of the Code of 1973. Suffice it to say,
the stage at which Section 202 could become operative was never
reached in this case. We have therefore in keeping with the well
established practice of the Court, decided only that much which
was essential for the disposal of this appeal, and no more.”
15.2) The Hon’ble Allahabad High Court in the case of Jagannath
Verma v. State of U.P., 2014, reported in AIR 2014 ALL 214 has observed that:-
“43. An Order which determines matters of moment or which
affects valuable rights is not an Interlocutory Order. An Order
passed by the Magistrate declining to entertain an Application
under Section 156(3), is a matter of moment for the Complainant
or the informant because such an order has the effect of declining
to issue a direction to the Police to register an FIR and investigate
the case. That avenue of a Police investigation is foreclosed by the
passing of an Order under Section 156(3). The remedy of a
Complainant under Section 200, stands in a distinct and
independent sphere and is subject to the discharge of statutory
obligations which a Complainant, who brings focus on the
commission of a cognizable offence, may not be able to bear….”
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15.2) The Hon’ble Supreme Court in the case of Ahmad Ali Quraishi v.
State of U.P., reported in (2020) 13 SCC 435 has observed that:-
“19. In the criminal revision filed against the said order of the
Sessions Judge, this Court did not interfere with the rejection of
an application under Section 156(3) CrPC, however, observed
that the complainant has remedy to file appropriate application.
The complainant thereafter had filed Complaint No. 1 of 2017. It
is true that rejection of an application under Section 156(3) CrPC
in no manner preclude a complainant to file a complaint under
Section 200 CrPC.”
15.3) Learned Advocate for the Applicant placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Poonam Chand Jain v.
Fazru, in (2004) 13 SCC 269 wherein it is observed as under :-
“7. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar [AIR 1962
SC 876 : 1962 Supp (2) SCR 297 : (1962) 1 Cri LJ 770] Kapur, J.
speaking for himself and Hidayatullah, J. as he then was,
observed (AIR at p. 899, para 48) : (SCR p. 354)
“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
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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 Ditta v.
Karam Bakhsh [AIR 1930 Lah 879 : 31 Cri LJ 1180] , Ram
Narain Chaubey v. Panachand Jain [AIR 1949 Pat 256 : 50 Cri
LJ 524] , Hansabai Sayaji Payagude v. Ananda Ganuji
Payagude [AIR 1949 Bom 384 : 51 Cri LJ 39] , Doraisami
Aiyar v. T. Subramania Aiyar [AIR 1918 Mad 484 : ILR 41
Mad 188 (FB)] . 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 cases
abovequoted and adopted the opinion of Macleam, C.J. in
Queen Empress v. Dolegobind Dass [ILR (1901) 28 Cal 211 :
5 CWN 169] affirmed by a Full Bench in Dwarka Nath
Mondul v. Beni Madhab Banerjee [ILR (1901) 28 Cal 652 : 5
CWN 457] . 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.”
S.K. Das, J. delivering the minority judgment also observed (AIR
p. 887, para 21) : (SCR pp. 324-26)
“The question was then considered by a Full Bench of the
Calcutta High Court in Dwarka Nath Mondul v. Beni Madhab
Banerjee [ILR (1901) 28 Cal 652 : 5 CWN 457] and it was
held by the Full Bench (Ghose, J. dissenting) that a
Presidency Magistrate was competent to rehear a warrant
case triable under Chapter XXI of the Code of Criminal
Procedure in which he had earlier discharged the accused
person. Nilratan Sen case [Nilratan Sen v. Jogesh Chundra
Bhuttacharjee, ILR (1896) 23 Cal 983 : 1 CWN 57] and
Komal Chandra Pal case [Komal Chandra Pal v. Gour Chand
Audhikari, ILR (1897) 24 Cal 286 : 1 CWN 185] were
referred to in the arguments as summarised in the report, but
the view expressed therein was not accepted. Dealing with
the question Prinsep, J. said:
‘There is no bar to further proceedings under the law, and,
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therefore, a Magistrate to whom a complaint has been
made under such circumstances, is bound to proceed in the
manner set out in Section 200, that is, to examine the
complaint, and, unless he has reason to distrust the truth of
the complaint, or for some other reason expressly
recognised by law, such as, if he finds that no offence had
been committed, he is bound to take cognizance of the
offence on a complaint, and unless he has good reason to
doubt the truth of the complaint, he is bound to do justice
to the complainant, to summon his witnesses and to hear
them in the presence of the accused.’
The same view was expressed by the Madras High Court in
Malayil Kottayil Koyassan Kutty, In re [AIR 1918 Mad 494 :
18 Cri LJ 329] and it was observed that there was nothing in
law against the entertainment of a second complaint on the
same facts on which a person had already been discharged,
inasmuch as a discharge was not equivalent to an acquittal.
This view was reiterated in Kumariah Naicker v. Chinna
Naicker [AIR 1946 Mad 167 : 47 Cri LJ 595] where it was
held that the fact that a previous complaint had been
dismissed under Section 203 of the Code of Criminal
Procedure was no bar to the entertainment of a second
complaint. In Hansabai Sayaji Payagude v. Ananda Ganuji
Payagude [AIR 1949 Bom 384 : 51 Cri LJ 39] the question
was examined with reference to a large number of earlier
decisions of several High Courts on the subject and it was
held that there was nothing in law against the entertainment
of a second complaint on the same facts. The same view was
also expressed in Ram Narain Chaubey v. Panachand Jain
[AIR 1949 Pat 256 : 50 Cri LJ 524] , Rama Nand v. Sheri
[AIR 1934 All 87 : 35 Cri LJ 1062] and Allah Ditta v. Karam
Bakhsh [AIR 1930 Lah 879 : 31 Cri LJ 1180] . In all these
decisions it was recognised further that though there was
nothing in law to bar the entertainment of a second
complaint on the same facts, exceptional circumstances must
exist for entertainment of a second complaint when on the
same allegations a previous complaint had been dismissed.
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… I accept the view expressed by the High Courts that 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. I also accept the view that as 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 a second complaint on the
same allegations; in other words, there must be good
reasons why the Magistrate thinks that there is ‘sufficient
ground for proceeding’ with the second complaint, when a
previous complaint on the same allegations was dismissed
under Section 203 of the Code of Criminal Procedure.”
16) The ratio laid down by the Hon’ble Supreme Court in the case of
Poonam Chand Jain v. Fazru, (Supra) is well settled law. The observations of
the Hon’ble Supreme Court in the case of Ahmad Ali Quraishi (Supra) and the
observations of Allahabad High Court in the case of Jagannath Verma (Supra)
are squarely applicable to the present case.
17) In the present case, the first complaint, i.e. 03/SW/2018, was
disposed of when the prayer under Section 156(3) of the CrPC was rejected.
In revision, which was filed challenging the said Order dated 27 th February
2018, the Sessions Court had specifically observed that the Original
Complainant could file a complaint irrespective of the impugned Order
because only the prayer under Section 156(3) was rejected and he had not
consented for treating the case for proceeding under Section 200 of CrPC.
18) It was pursuant to these directions that the Second complaint, i.e.
08/SW/2019, was filed. It is in this case, for the first time, that the enquiry
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under Section 202 of the CrPC was initiated. The rejection in the first
complaint was only in respect of proceedings under Section 156(3) of the
CrPC. The complaint case was not proceeded with. It is only in the second
complaint, i.e. 08/SW/2019, that for the first time an enquiry under Section
202 of the CrPC was initiated to ascertain the role of Accused No. 1. Based on
the report which was submitted on 19 th October 2019, the Order of issuing
summons was passed on 19th December 2019. The said Order is passed on the
enquiry report dated 19th October 2019. The said Order has proceeded on the
merits of the matter. The Applicant preferred a revision application against the
said Order, which was dismissed by the Order dated 3rd November 2023. In
the said Order, the Sessions Judge has observed that the first complaint only
sought relief under Section 156(3), whereas the second complaint was under
Chapter XV of the CrPC.
19) Considering the facts of the present case and the Judgments as
referred to hereinabove, it appears that the observation and reasoning of the
learned Sessions Judge in the Order dated 3 rd November 2023 is the correct
proposition of law. I have noted that, the Hon’ble Supreme Court in the case
of Ahmad Ali Quraishi v. State of U.P. (Supra) , in para 19, has specifically
observed that rejection of an Application under Section 156(3) of CrPC in no
manner precludes a complainant from filing a complaint under Section 200 of
the CrPC. Also, the Full Bench of the Allahabad High Court in the case of
Jagannath Verma (Supra) has observed that, the right to seek an Order under
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Section 156(3) and the remedy of the complainant under Section 200 of the
CrPC stand in distinct and independent spheres.
20) Section 156(3), which occurs in Chapter XII of the CrPC, deals
with information to police and their powers to investigate, while Section 200
and enquiry under Section 202 come under Chapter XV of the CrPC under the
heading of complaints to Magistrates. The power of police investigation under
Section 156(3) is different from the power to direct an investigation under
Section 202(1) of the CrPC. The power under Section 156(3) is a power
exercisable at the pre-cognizance stage, while the power under Section 200 is
a power exercisable at a post-cognizance stage when the Magistrate is in
seisin of the case.
21) It is settled law that the power under Section 156(3) can be
invoked by the Magistrate before he takes cognizance of an offence under
Section 190 of the CrPC. Once cognizance is taken and the procedure under
Chapter XV (Sections 200 to 204 of CrPC) is invoked and proceeded with,
then one cannot switch back to the pre-cognizance stage and avail of Section
156(3) of the CrPC. As observed by the Hon’ble Supreme Court, an Order
made under Section 156(3) is in the nature of a peremptory reminder and
intimation to the police to exercise their powers of investigation under Section
156(1), which investigation begins with the collection of evidence under
Section 156(3) and ends with the report and charge-sheet under Section 173
of the CrPC. Section 202 of the CrPC is invoked and comes into play only
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when some evidence is available before the Magistrate in a proceeding under
Chapter XV but which appears to be insufficient to take a decision. It is in such
a situation that the Magistrate initiates an enquiry under Section 202 of the
CrPC. The said enquiry is held and conducted obviously within the limits of
Section 202 of the CrPC, i.e. for the purpose of deciding whether or not there
is sufficient ground for proceeding. Section 202 is assistance provided to the
Magistrate under the CrPC for completing the procedure already initiated.
Once the report under Section 202 is received, the Magistrate has the option
either to proceed under Section 203 or 204.
22) In the facts of the present case, at the initial stage, what was
rejected only was the prayer under Section 156(3), and the proceeding was
disposed of. The said proceeding was not revived. It was only in the Order
dated 31st December 2018 that there is an observation made that the
Complainant could file a complaint case irrespective of the rejection under
Section 156(3) of the CrPC, which was done by Order dated 27 th February
2018. It was in these facts that the second complaint was filed. As noted
earlier, in the first complaint, no steps were taken under Chapter XV of the
CrPC.
23) Considering the aforesaid facts and the law as laid down by the
Hon’ble Supreme Court, the Order dated 3 rd November 2023 is an Order
which is in accordance with law, and no fault can be found with the same.
24) In view thereof, the present Application is dismissed.
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25) The dispute/issues between the Complainant and the Accused
(who are related and happened to be family members) had commenced
before the year 2008. The present complaint is of the year 2019. In that view
of the matter, the Metropolitan Magistrate, 40 th Court, Girgaon, is requested to
take up the matter as expeditiously as possible.
(RANJITSINHA RAJA BHONSALE, J.)
SAGAR
SANTOSH
MAGAR
Digitally signed by
SAGAR SANTOSH
MAGAR
Date: 2026.10.05
21:20:27 +0530
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