STATE OF RAJASTHANversusARUNA DEVI AND ORS.

A                          STATE OF RAJASTHAN
                                       v.
                           ARUNA DEVI AND ORS.

                             NOVEMBER 8, 1994

B                 [KULDIP SINGH AND B.L. HANSARIA, JJ.]

         Criminal Procedure Code, 1973-Sections 173 (8) and 203-Dismissal
    of complaint u/s 203-Second complaint on same facts on basis offurther
    investigation-Order of Cognizance-Whether legally sustainable-Held,
    yes.
c
         A complaint was filed against the respondents under various
    sections of the Indian Penal Code. The Magistrate, after perusal of the
    complaint, directed an investigation to be made u/s 156 (3) of the Code
    of Criminal Procedure. A report was submitted that complaint was
    false. The report came to be accepted by the Magistrate. Thereafter the
D   police had independently ordered further investigation. A challan came
    to be filed by the police against the respondents u/ss 420 and 467 IPC.
    The Magistrate took cognizance. Revision filed against this order of
    taking cognizance was dismissed. The order of cognizance was set aside
    on further revision to the High Court, which held that the magistrate
E   had no jurisdiction to take cognizance after the final report submitted
    by police had been once accepted. The State had come in appeal. [under
    Article 136 of the Constitutiond-.

         The appellant contended that the view taken by High Court was
    rrroneous in law in as much as section 173 (8) of the Code permitted
F further investigation in respect of an offence after a report under sub
    section (2) had been submitted. Sub-section (8) also visualized
    forwarding of another report to the Magistrate. It was submitted that
    further investigation had thus legal sanction and if after such further
    investigation a report was submitted that an offence was committed, it
  . would be open to the Magistrate to take cognizance of the same on his
G being satisfied in this regard.
        The respondents submitted that the order of the Magistrate taking
    cogn~nce     pursuant to filing of · further report amounted to
    entertaining second complaint which was not permissible in law.

H        Allowing the appeal, this Court
                                      274
         STATE OF RAJASTHAN v. ARUNA DEVI [HANSARIA, J.]              275

    HELD: 1.1 Dismissal of a complaint under section 203 of the Code A
of Criminal Procedure is no bar to the entertainment of a second
complaint on the same facts when fresh evidence comes forward on
further investigation being made which leads to the filing of further
report stating that a case has been made out. (276-E-F)

    Pramathanath v. Saroj Ranjan, [1962] Supp 2 SCR 297, relied on          B
and Bhindeshwari Prasad v. Kali Singh, (1977) 1 SCC 57, distinguished.

    1.2 In the instant case, the High Court erred in quashing the
cognizance taken by the learned Magistrate. The appeal is, therefore,
allowed by setting aside the impugned judgment. (277-A)
                                                                            c
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.761
of 1994.

   From the Judgment and Order dated 17.12.90 of the Rajasthan High
Court in S.B.Crl.Misc. P.No. 233 of 1988.
                                                                            D
    Aruneshwar Gupta, for the Appellant.

    V.J. Francis, Doongar Singh and V. Subramaniam for the Respondents ..

    The Judg111ent of the Court was delivered by

    HANSARlA, J. Special leave granted.

     A complaint was filed in the Court of Munsif and Judicial Magistrate,
First Class, Bilara, against the respondents under various sections of the
Penal Code. The gravamen of the allegation was that the respondents had,
in pursuance of a conspiracy, transferred some land on the strength of a F
special power of attorney bearing forged signature. The Magistrate, after
perusal of the complaint, directed an investigation to be made·as contem-
plated by section 156 (3) to the Code of Criminal Procedure, 1973 (the
Code). A case was registered thereafter by police and a final report was
submitted on 18.7.81 stating that complaint was false. The report came to G
be accepted by the Magistrate on 23.9.81. It however, so happened that the
Superintendent of Police had independently ordered further investigation on
24.9.81 and a challan came to. be filed by police against the respondents,
inter alia , under section 420 and 467 IPC. The Magistrate took cognizance
on 25.6.84. A challenge was made to this act of the Magistrate before
Sessions Judge, Jodhpur, who dismissed the revision. On further approach H
    276                     SUPREME COURT REPORTS           [1994] SUPP. 5 S.C.R.

A   to the High Court; the revision was allowed. and the order. of cognizance
    was set aside. The State has come in appeal under Article 136 of the
    Constitution.

         2. A perusal of the impugned judgment of the High Court shows that it
    took the view that the Magistrate had no jurisdiction to take cognizance
B   after the final report submitted by police had been one~ "accepted. Shri
    Gupta, appearing for the appellant, contends that this view is erroneous in
    law inasmuch as section 173 (8) of the Code permit further investigation in
    respect of an offence after a report under sub-section (2) has been
    submitted. Sub-section (8) also visualizes forwarding of another report to
c   the Magistrate. Further investigation had thus legal sanction and if after
    such further investigation a report is submitted that an offence was
    committed, it would be open to the Magistrate to take cognizance of the
    same on his being satisfied in this regard.

          3. Shri Francis for the respondents, however, contends that the order of
D    the Magistrate taking cognizance pursuant to filing of further report
    amounted to entertaining second complaint which is not pennissible in law.
    To substantiate the legal submission, we have been first referred to
    Pramathanath v. Saroj Ranjan, [1962] Supp 2 SCR 297, in which a three-
    judge Bench of this Court dealt with this aspect. A persual of the judgment
E   of the majority shows that it took the view that dismissal of a complaint
    under section 203 of the Code is no bar to the entertainment of a second
     complaint on the same facts; but the same could be done only in
     exceptional circumstances some of which have been illustrated in the
    judgment. Further observation in this regard is that a fresh complaint can be
     entertained,. inter aiia, when fresh evidence comes forward. In the present
F    case, this is precisely what had happened, as on further investigation being
     made, fresh materials came to light which led to the filing of further report
     stating that a case had been made out_.

         4. The case of Bindeshwari f'rasadv. Kali Singh, [1977] l SCC 57, to
G   which also has been referred by Shri Francis, has not really dealt with the
    point under consideratfon, as the legal question examined therein was
    whether a Magistrate possesses inherent powers to review or recall any
    order passed by him. Of course, the order recalled in that case was also one
    of dismissing of complair.t under section 203 on the ground of complainant
    being absent which showed that he had no interest in the matter.
H
         STATE OF RAJASTHAN v. ARUNA DEVI [HANSARIA, J.]              277

     5. The aforesaid being the position in law, we are of the view that the A
High Court erred in quashing the cognizance taken by the learned
Magistrate. The appeal is therefore, allowed by setting aside the impugned
judgment. It would, however, be open to the respondents, on the matter
being further taken up by the Magistrate, to urge that no case against them
has been made out, whereupon such order shall be passed by the Magistrate B
as deemed legal and just.

A.G.                                                     Appeal allowed.