PRAMATHA NATH TALUQDAR v. SAROJ RANJAN SARKAR
Citation: [1962] SUPP. 2 S.C.R. 297; 1961 INSC 357
Court: Supreme Court of India
Bench: S.K. DAS , J.L. KAPUR, M. HIDAYATULLAH
Judgment date:
Case summary
1961 INSC 357. Supreme Court of India judgment dated 1961-12-21. PRAMATHA NATH TALUQDAR v. SAROJ RANJAN SARKAR. Read the judgment and case details on...
Judgment text
2 S. C. R. SUPREME COURT' REPORTS 297 restore the order of the District Judge, Vizagapa· tam, setting aside the order of the Board dated March 28, l! J4 7. Appeal allowed. PRAMATHA NATH TALUQDAR v. SAROJ RANJAN SARKAR (S. K. DAs, J. L. KAPUR, and M. HmAYA'fULLAH JJ. ) Criminal . Comp taint-Scope ojenquiry-Secmid complaint on same facts but fresh evidence-When ca" be entertained-- Exceptional circumstances-Manifest error-Gode of Criminal Procedure, 1898 (Act 5 of 1898), as. 200, 202, 203, 204-0rimi- nal Matter-Special Bench-Validity of Constitution-Calcutta High Court (Appellate) RukB-Sanction-Abetment by conspi- racy-Gode of Criminal Procedure, 1891 (Act 5 of 1898), s. J96A-lndian Penal Gode, 1860 (XLV of 1860), ss. 107, 109, 120A, 12CB. On March 17, 1954, Promode Ranjan a brother of N. R. Sarkar filed a complaint under s. 200 Code of Criminal Pro- cedure against Pramathanath and S. M. Basu alleging offences punishable under ss.
467, 471 and 109 of the Indian Penal Code, before the Chief Presidency Magistrate in respect of a document appointing Pramathanath as the Managing Director of N. R. Sarkar & Co. and the minutes of the Board meeting resolving the same. It was alleged therein that me signatures of N. R. Sarkar on 11.. - documents were forgeries. After considering the evidence of the Handwriting Expert the Magis- trate dismissed the complaint. Promode Ranjan preferred a revision petition to the High Court. The High Court dismissed the revision Petition. By an application dated January 6, 1956, when the revision petition was pen ne City 6091" where as the City Exchange had not come into existence till December 1948. The Supreme Court granted special leave against the dismissal of the revision petition by the High Court but the appeal was withdrawn. On April 3, 1959, Saroj Ranjan, another brother of N. R. Sarkar, laid a complaint on the same facts and ail~tions Ifill The Poolrari Fakir Bad .. a.
rlh;y of Bondillrpuram v. The Commissioner, Hindu. Reli1ious anti Charitable Endownunts Raghuhor Da;yal J. 1'6J Dicnnber 2 t "" Pr•oluN. ih Tollll/tlar •. s.. ; Raja . Satiar 298 SUPR. EKE COURT REPORTS [1962] SOPP. agaimt the appellants, in addition alleging the further fact about the City Exchange in support of the allegation that the minutes were forged dishonestly and fraudulently and wed as genuine. Neither in this complaint nor before the High Court had it been stutd as to when it came to be known that on the purported date of the minutes the City Exchange was not in existence. The Presidency Magistrate issued pcOCCM against the appellants. The appellants went up in reruion to the Hiirh Court. The matter was first heard by a Division Bench and was later referred to a larger Bench of three Judges which dimiissed the revision petition. In these appcab on special leave it .
was contended by the appellants that the second complaint ought not to have been entertained, that the· constitution of the special Bench was illegal and that as the complaint alleged criminal conspiracy sanction under s. I 96A of the Code of Criminal Procedure was required. Held, that the enquiry contemplated by ss. 200 to 204, Code of Criminal Procedure is for the purpose of enabling the Magistrate to find out if sufficient grounds exist for issuing prc»:ess. V adilal Pa~h UB complaint on the •ame allegations has been dismissed under 1. 203 of the Code of Criminal Procedure. But a oecond complaint containing more or less the same allegations can be entertained only in exceptional circumstances. It is not possible nor desirable that the exceptional circumstances must be stated with particularity or precision.
Generally speaking, the exceptional circumstances may be classified under three categoric•: (1) manifest err6r in the earlier procreding, (2) resulting miJcarriage of justice, and C'l new facts which the complainant had no knowledge of or could not with reason• able diligence have brought forward in the previous proceed- ings. Where the previous order of dismissal was passed on an incomplete record or on a miJunderstanding of the r. aturc of the complaint, a oecond complaint may be entertained. Where a Magistrate misdirects himself as to the scope of an enquiry under s. 202, Code of. Criminal Procedure, and the mistake, made gives a wrong direction to the whole proceeding on the first complaint, the order of dismissal pas•ed thereon would be due to a m4nifcst error resulting in a miscarriage of justice. In such a case, a second complaint is entertainable. .. • •. 2 S. C. R. SUPREME COURT REPORTS 299 Per Kapur and Hidayatullah, JJ.
--There is no legal bar to the ent~rtainability of a second complaint. It is only when the Magistrate had misdirected himself, with regard to the scope of the enquiry under s. 203, Code of Criminal Pro- cedure, or has passed an order misunderstanding the nature of the complaint or the order is manifestly unjust or absurd or the order is based on an incomplete record, can it be said that_ there is such a manifest error or a manifest miscarriage of justice that a second complaint on the same allegations may be ente1 tained. The other exceptional circumstances in which a second complaint may be ente1tained is when it is supported by fresh and further evidence. Case,law referred to. In the case of fresh evidence it must be such as could not have been with due diligence on the part of the complaint adduced on the earlier occJsion. Queen Empress v. Dole GobinJ,a Das I. L. R. 28 Cal. 211, Du·arkanath Mandal v. Daniradha Banerjee, I. L. R, 28 Cal. 692 (F . B. ), disapproved. Allah Ditta v.
Karam Bakshi, 12 Lah. 9 Ram Narain Cho1ed/auy v. Punac/1andJain, A. l. R. 1949 Pat. 255, Hansabai . v. Ananda, A. LR. 1949 Born. 384 and Dorais1cami v. Sub- ramania, A. I. R. 1918 Mad. 484, approved. In the present case permitting the second co1nplaint to proceed would be a gross abuse of process. Htld, further, concurring with S. K. Das, J . , that the Special Bench was properly constituted. Per S. K. Das, J. -On the first complaint the Presidency Magistrate had misdirected himself regarding the scope of the enquiry under ss. 203 and 204 of the Code of Criminal Proce- dure and it was a manifest error. The facts about the City Exchange urged and fresh evidence were decisive of a prima facie case for issuing process and it was an exceptional circum- stance justifying entertaining the second complaint and not to permit the trial of the case in such circumstances would be a denial of justice. K-umariah v. U. Naicker, A. J. R. 1946 Mad, 167 and Ramanand v. Sh,,,. ;, I. L. R. !
56 All 425, referred :o. Though Chapter II of the Rules of the High Court (Appellate Sid~) in terms applies to Civil cases, their substance could. L~ applied to criminal cases by the Chief Justice in const 1tuung a larger bench. The substance of the allegations in the complaint amounted to an offence of abetment by conspiracy under 1961 Pramal/ia Nath r aluqdar v. Saroj R 1nj in Sar'/ear 1961 P101Mlho Nath Toluqchir •• 841oj Rujan s,11 ' • 2 S. C,R. SUPREME COURT REPORTS ~303 The appeal was accordingly withdrawn on March 12, 1959. Then, within about 22 days of that order, Saroj Ranjan Sarkar filed the complaint wkich has given 'rise to the present proceedings. For convenience and brevity, I shall refer to Pro- mode Ranjan Sarkar's complaint as the first com- plaint and Saroj Ranjan Sarka. r's as the second complaint. It is necess&ry here to give a little more of the background history of the second complaint. As stated earlier, the late Nalini Ranjan .
Sarkar was a well-known person in Bengal. He was the Governing or Managing Director of N. R. Sarkar & Co. Ltd. , which managed several public limited companies, such as, Hindusthan Development Corporation Ltd. , Hindusthan Heavy Chemicals Ltd. , and Hindusthan Pilkington Glass Works Ltd. He was also closely connected with the Hindusthan Co-operative Insurance Society Ltd. , of• which he held a large number of shares. On January 4, 1948 he obtained leave of absence from the Directors of N. R. Sarkar & Co. Ltd. for a period of one year with a view to joining the Mini3try in West Bengal and he assumed office as Finance Minister of the West Bengal Governmeriton January 23, 19+8. Later, the leave granted to him for one year was extend- ed. He owned 4ti49 shares of N: R. Sarkar & Co. Ltd. Pramatha Nath Talukdar, who was a paid employee of the Hindusthan Co-operative Insurance Society Ltd. np to the end of July, 1953 was also a Director of N. R. Sirkar & Co. Ltd.
He held 299 shares of the said company. Promode Rajan Sarkar held 50 shares. Santi Ranjan Sarkar; son of a deceas- ed brother of Nalini Ranjan Sarkar, held one share. Thus, it would appear that Nalini Ranjan Sarkar was the owner of the largest number of shares of N. R. Sarkar & Co. , Ltd. , and for all practical pur- poses he controlled the affairs of that company. On July 31, 1951 Nalini Ranjan Sarkar executed a deed of trust in respect of 3649 shares out of the 19111 Parmath" N. th Taluqd01 v. Saroj RanjtJn Sar. ' ar DasJ. ,951 Pr.. ,. u.. Kalli TaJ"'I®' ••• Stuo. f Rottjan Sarbr t:•as J. S04 SUPREME COURT REPORTS [1962] SUPP. shares held by hitn in N. R. Sarkar & Co. Ltd. By the said trust-deed he · appointed Promode Ranjan Sarkar, Pramathe. Nath Talukdar e. nd Narendra Nath Law as the· trustees; but the beneficiaries under the trust-deed were his four brothers, namely, Promode Re.
njan Sarkar, Pabitra Ranjan Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjan Sarkar, as also Santi Ranjan Sarkar, the son of a deceased brother. It 'llas alleged that the balance of 1000 shares held by Nalini Ranjan Sarkar was kept in custody with Pramatha Nath Te. lukdar and according to the case of the com- plaine. nt, these she. res were kept in . depoeit with Pramatha Nath Talukdar for tht benefit of the complainant and this brothers. Nalini Ranjan Sarkar died on January 25, 1953. It W88 alleged that a few days after the funeral re forged. The main allegations in the first and second complaints related to three documents and were to the effect "that in order to assume complete control over N. R. Sarkar & Co. Ltd. and the concerns under its managing agency, the accused persons entered into a criminal conspiracy with one another and others unknown, to dishonestly and fraudulently forge a deed of agreement, a deed of transfer and make a false document, to wit, minute book ofN. R.
1farkar & Co. Ltd. andin pursuance thereof dishonestly and fraudulently forged and or ca. used to be forged and used as genuine the said documents". It will be noticed that three documents were stated to have been forged, and they were-- (1) An unregistered deed of agreement purpor· ting to have been executed by the late Nalini Ra'njan Sarkar as Governing Director of N. R. l:larkar & Co. Ltd. on January 19, 1948 appointing :rramatha Nath Talukdar as the Managing Director of N. R. Sarkar & Co. Ltd. on a remmuneration of Rs. 1500-100-2000 per month. This document bore 19~1 Pramathti Nath Taiuqdar •• S111oj &l! jan S""'° Dos J. lgfl fT(fffttzfM N•tA To/Ul/i/Jr v. s. ,. i R .. J•• s. ,,_ D•1J. 306 SUPREME OOURT REPORTS [1962] SUPP. the signature of Saurindra Mohan Basu as a witue88 attesting the ~ignature of Nalini Ranjan Sarkar, which signature was stated to have been forged. (2) A transfer deed in reBpt>ct of 1000 shares ofN. R. Sarkar & Co. Ltd.
which were said to ha'l'e been entrusted to Pramatha Nath Tal11kdar, transfer- ring them to the Ia~ter for and alleg d of a draft agreement of appointment between the Company and Pramatha Nath Talnkdar for appoint- ing the latter as Managing Director of the Company and that the Board of Directors approved of the said draft agreement. Of the aforesaid three documents the one relating to the alleged transfer of 1000 shares referred to as (2) above, is the subject of a separate suit stated to be now pending in the Calcutta High Court. That document is not, therefore, directly the subject matter of the second complaint. As to the unregistered deed of agreem"nt referred to es ( 1) above, it may bo stated that the original document could not be later found, and on b~half of the appellants and other accused p<>rsons it was stated that the document was not in. thdr posses· sion or control. As statPd earlier, Promode Ranjan Sarkar had obtained a photostatic copy of the rele.
vant portions of the document. As to this dcicu· mcnt the main e. Jlege. tion of the complainant was that it was engrossed on a rupee stamp·paper whirh had been iaeued, on renewal, in the name of P. D. Himatsinghka & Co. , a firm of soliciters in Calcutta ... 2 S. C. R. SUPREME COURT REPORTS 307 and evidence was led at the enquiry into the first complaint that the paper was stolen from that firm and furthermore that the signature on the document purporting to be that of Na! ini Ranjan Sarkar was not his signature at all. With regard to the minutes of the proceedings dat~d January 16, 1948 the allegation was that the minutes were typed on a sheet of paper bearing the letter-head N. R. Sarkar & Co. Ltd. with telephone number "City 6091" printed thereon; but the City Exchange did not come into existence . untill December, 1948 and the telephone connection relating to number "City 6091" was· obtained for the first time by the Hindusthan Co-operative Insurance Society Ltd.
on or about March 18, 1949; and therefore the paper with ti. e letter-head N. R. Sarkar & Co. Ltd. with telephone number "City 6091" printed thereon could not have been in existence on the alleged date of the proceeding of the Board of Directors, namely January 16, 19! 8. In the second complaint certain other circumstances wPre also alleged in support of the allegation that the unregistered dPed of agreement dated January 19, 1948 and the minutes of the proceedings dated January, 16, 1948 were forged. It is, however, unnecessary to refer to those circumstances in detail here.
'Ihe learned Chief Presidency Magistrate, Shri Bijayesh Mukherjee, who dealt with the second complaint considered all the relevant materials and came to the following conclusions: (1) there was no delay in making the second complaint, if one had regard to the ciroumstances which led to the firet complaint and the with- drawal of the appeal in the Supreme Court on March 12, 1959 arising out of the order made on the first complaint; (2) the dismissal of the first complaint and the applic iti. m in revision arising therefrom by Debabrata Mookerjee, J. did not, as a matter oflaw, 19111 Pramatha Naf. /z Taluqdar •• 8 jTOj Ranjan sa,kar DasJ. 1951 PtanurlMN•IA TollJl/hr y, s.... ; Rcti .. Bua Doi J •. 308 SUPREME COURT REPORTS [19~2] SUPP. operate as a. ba. r to the entertainment of the second complaint. (3) the second complaint wa. e not an attempt a. t blackmail; a. nd (4) the relevant materials in the record showed prima facie tha.
t the minutes of the proceed- ings dated January 16, 1948 were forged and so a. lso tho unregistered deed of agreement dated Janu- ary, 19, 1948. The learned Chief Presidency Magistrate then ea. id : "Prima facie, I am satisfied about the truth pf the allegations the complaint makes. That a. pa. rt, the complaint is for an offence triable bv a Court of lfCSSions. And the ma. teria. le I e~e before me a. re euoh a. s in my opinion may lead a reasonable body of men to believe the truth thereof. Judged so, there is in my opinion sufficient ground for proceedin~ within the meaning of seotion 20! of the procedure Code. On the question a. e to whioh of the fou~ accused persons against whom prooesa should i11S11e, the learned Chief Presidency Magistrate oame to the oonclusion that there was a prima f acie case Against two of the acoueed persons only, namely, Prams. th& Nath Talukdar and Saurindra Mohan Basu. Saurindra Mohan Basu, it may be stated here, was a solicitor of N. R. Sarkar & Co.
Ltd. and had attes- ted the signature of Nalini Ranj11n Sarkar on the unregistered deed of agreement. The ! tl&rned Chief Presidency Magistrate h t of five Judges or three Judges as the Chief Justice may appoint. Now, r. 1 in Ch. VII says inrer alia that whenever one Division Bench shall differ from any other Division Bench upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench and r. 5 says that if any such question arises in any case coming before a Di vision Bench as Court of Criminal Appeal, Hefertnce or Revision, the Court referring the the case sh11ll state the point or points on which they differ from the decision of a former Division Bench, and shall refer the ease to a Full Bench, for such orders as to such Bench seem fit. In his judgment P. B. Mukherjee, J. refer· red to two earlier decisions of the Calcutta High Court, Nilraf,anSen v. Jogesh Chandra Bhattacharia(') and Kamal Chandra Pal v.
Gourchand Adhikary (') and observed that the question as to whether those decisions were good law arose in the case and he gave that as a reason for referring the case to the Chief Justice for the constitution of,a larger Bench. Even if rr. l and 5 in Chapter VII may not,strictly speaking, apply to the present case be- cause the Division Bench consisting of Mukerjeeand Bose JJ. did not formulate the point or points on which they differed from the earlier Division Bench decisions refferred to by Mukherjee, J. , I think that the principle of those rules would apply and it was open to the Chief Justice, on a reference by the Division Bench, to constitute a larger Bench to consider the case. I am also in agreement with the view expressed by the Special Bench that the ab· sence of a proviso to r. 9 in Chapter II correspon· (1) I. L, R, 23 Cal, 983. (2) (1897) J. L. R. 24 Ca!. 286, 1961 Pramatha Noth Taluqdar v. Ba1oj Ranjan Sar/cm DasJ. 11181 Pr-"'- NoJo TallM/k Y, 8,roj R~ion s,,f,r D•sJ.
312 SUPREME OOURT REPORTS (1962] SUPP. ding to tho proviso to r. l does not take nway the inherent power of the Chief Justice to rnfer any mat- ter to Bench of three Judges. Sub-rule( l)uf r. 11 itself provides that a Division Bench for th1; hearing of cases on appeal, reference, or revision in respect of the sontence or order of any Criminal Court shall consist of two or more Judges. Therefore, it was open to the Chief . Justice to constitute a Bench of three Judges for the hearing of tho case and in my view it made no difference whether he constituted such a ilench originally or on a reforence back by the Division Jfonch. I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of th! l Division Bench feels, for a eufficient and good reason, that he should m. t hear th11 case.
lt id obvious that in such a case the matter must be referred back to the Chief Justice for the consti- tution of another Bencil. The Chief Justice, I think, must possess such a. n inherent power in the matter of constitution of Benches and in the ex- ercise thereof he can surely constitute a larger Bench in a. case of importance where the Division Bench hearing it considers that a question of the correctness or Otherwise of earlier Division Bench decisions of the ea. me Court will fa. II for considera- tion in tho case. Section 229 of the Code of Cri- minal Procedure does not apply to such a. caso because it is not a case where the Judges compo- sing the Court arc equally divided in opinion. Rather it i~ a. case where the Judges composing the Division Bench consider that the case is one of such importance that it should be heard by a larger Bench. My conclusion, therefore, is that there wa. s nothing illegal in the Division Bench consisting of Mukherjee and Boso, JJ.
referring the ca. seback to the Chief Justice ; nor was there anyting illegal in tho Chief Justice co11stituting a special Bench of 2 S. C. R. SUPREME COURT REPORTS 313 three Judges to hear the applications in revision. The special Bench constituted by the Chief Justice was IJ. wfully in seizin of the ca. se and was competent to deal with it. The objection as to the jurisdic· tion of the special Bench to hear the case was, in my opinion, rightly overruled by it. Now, as to saction, . Section l96A of the Code of Criminal Procedure may be read first. That section is in these terms : "l96A. No Court shall take cognizance of the offence of crimi11al conspiracy puni- shable under section 120B of the Indian l'enal Code.
(1) in a case where the object of the cons- piracy ·is to commit either an illegal act other than an offence, or a legal act by illegal means, or an effence to which the provisions of section 196 apply, unless authority from the "State Govern- upon complaint made by order or under authority frc·m the "State 'Government" or some officer empowered by the "State Government" in this behalf, or (2) in a case where the· object of the cons. piracy is to commit any non-cognizable offence, or a cognizotble offence not puni- shable with death, imprisonment jQr life or rigorous imprisonment for a term of two years or upwards, unless the "State Government", or a Chief Presidency Magistrate or District Magistrate empo- wered in this behalf by the "State Government", has, by order in writing, consented to the intiation of the pro- ceedings: Provided that where the criminal conspi- racy is one to which the provisions of sub- section (4) of section 195 apply no such consent shall be necessary.
" 1961 P1amatha Nat!. T. Juqdar v, Sdf" ntioned in s. 196A, the order of the Chief Presidency Magis- trate could not be said to have violated the provi- sions of that section. The correctness of these views of the special Bench has been very seriously contested. I may make it clear at the very outset that the mandatory provisions of s. 196A of the Code of Criminal Procedure cannot be evaded by resorting to a mere device or camouflage. The test whether sanction is or is not necessary does not depend on mere astuteness of drafting the petition of complaint. For example, in the second petition of complaint under consideration before us the heading indicated, that the offences in re~pect of which the petition of complaint was filed were offences under ss. 467, 471 and 109 of the Indian Penal Code ; but in para. 5 of the petition the allegation was that the accused persons had enter- ed into a criminal conspiracy with one another and others unknown, to forge certain documents.
It would not be . proper to decide the question of sanction merely by taking into consideration the offences mentioned in the heading or the use of the expression "criminal conspiracy" in para. 5. The proper test should be whether the allegations m:i. de in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be nece~sary" to the initiation of the proceedings within the meaning of s. 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition of complaint must be examined. There is another principle laid down by this Court which should be kept in mind. The allegations made in tho complaint may have more than one aspect; and may disclose more than one offence. What would be the position when some of the offences disclosed do not require any sanction while others require sanction.? This question was considered by this Court in 1961 Pramat\a Nath Taluqdr,r •• Sr. rof Ranjan 8 ar/ca Das J.
1961 Prmatlra Nath To! uqd"' v. S•roj Rcnjan Sarkar D•s J. 316 SUPREME COURT REPORTS [1962) SUPP. Ba. 1ir-. v. l·huq v. State of West Bengal('). That was case m which the accused person lodged informatil>n at a police station that X had beaten and throttled his ? 1other tu death and when tho funeral pyre was m flames, he entered· the cremation ground with police; the dead body was examined and the complaint was found to be fa 1,e, On the complaint of X the acc'! bed person was charged with offences under s. ~97, Indian Penal Cude (tresspass to wound religious feelings) and s. iiOO, Indian Pena. I Cede (defamation). It was contended that as tho complaint disclosed offences under ss. 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under s. I ! J5 of the Code of Criminal Procedure. It was held that the facts which constituted the offence under s.
297 where dis- tinct from those which constituted an offences under s. 182, as tho act of trespass was alleged to have been committed after the making of the false 1eport, so s. I! J5 was no bar to the trial of the charge under s. :! 97. It was further held that as regards the charge under s. tOO where the allegations made in a false report disclose two distinct offences, one against a public servant and tho other against a private individual, the latt? r is not debarred by provisions of s. 195 of the Code of Criminal Prooodurc from seeking redret! S fur the offence committed against him. Referring to s. 195 of tho Cude of Criminal Procedure Mahajan, J. who delivered the judgment of the Comt said : "The 1tatute thus requires that without a complaint In writing of the public servant conoer. ned no prosecution for an offence under section l! i2 ran be taken cogniz. a. nce of.
It does not further provide that if in the course of the commission of that offenoe other distinct offences are committed, the magistrate is debarred from taking cogni1. anoe in respect of those offences as well. The allegations made (1) l19~)J S. C. R. ijJ6. 2 S. C. R. SUPREME COURT REPORTS 317 in a complaint may have a double aspect, that is on the one hand these mav constitute an offc·nce against the authority of the· public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made. x x x x As regards the charge under section EOO, Indian Penal Code, it seems fairly clear both on principle and authority that where the aHegations made in a false report dic]ose two distinct offences. , one agaist the public ·servant .
and the other against a private individual, that other is not debarl'. ed by the provisions of section 195 . from seeki~g redress for the offence committed against him. " Keeping the aforesaid two principles in mind let me examine the second complaint in this case in order to find · out what essential offences the allegations made therein disclosed. Paragraph 5 of the petition of complaint on which much reliance has . been placed on behalf of the appellant alleges (1) that the accused persons entered into a criminal conspiracy with one another and others unknown, t. o forge certain documents; (2) that in pursuance of th~ compiracy those documents were forged ; ot caused to be forged·; and (3) that the documents so forged were used as genuine. The paragraph then recited three documents which were said to have been forged. It is thus clear that apart from the conspiracy, the second of abetmcnt by conspiracy as defined ins. i07 of the Indian Ptmal Code. Section I:?
OA which definPs the offrnci> ,,f criminal conspiracy and s. 120B which punishes the offence are in C'h. VA of the Indian Penal Code. This Chapter intro in pursuance of that conspiracy, and an order to the doing of that thing. Therefore, in order to constifute the offence of &betment by conspiracy, there 2 S. C. R. SUPREME COURT REPORTS 319 must first be a combining to~ether of two or more persons in the conspiracy ; secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing. It is no~ necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conEpiracy in pursuance of which the offence is committed. It is worthy of note that a mere conspiracy or a combina- tion of persons for the doing of a thing does not amount t. o an abetment.
Something more is necessary, namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. Before the introduction of Ch. VA conspiracy, except in cases provided by ss. 121A, 31! , 400, 401 and 402 of the Indian Penal Code, was 'a mere species of abetment where an act or an illegal omission took place in pursuance of that conspiracy, and amounted to a distinct offence. Chapter. VA, however, intro· duced a new offence defined bys. 120A. That offen- ce is called the offence of criminal conspiracy and consists in a mere agreement by two or more pllr· sons to do or cause to be done an illegal act or an act which is not illegal by illegal means ; there is a proviso to the section which says that no agree- ment except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or moi:e parties to such agrePment in pursuance thereof.
The position, therefore comes to this. 1he gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to com- mit an offence, the agreement itself becomes the offence of criminal conspi~acy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary. 1951 P,arnatha Nath Tatuqdar v. Saroj Ranjon Sarkar DasJ. IHI Pram-tlA4 Nath T aluqdtw v. Soroj Ra11jar& S Jrk•r D. , J. 320 SUPREME COURT REPORTS [1962] SUPP. Therefore, the distinction between the offence of abetment by comspiracy a. nd the offence of crimi- nal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by Conspiracy mt>re agreement i~ not enough. An act or illeg11. I omission mU11t takP place in pursuance of the conspiracy and in order to the doing of the thing conspired for ..
But in the uffence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy v. The Queen (') : "When to agree to carry it into effect, the very plot is an act in itself. and the act of each of the parties, promise against promise, actu. ~ contra Mtum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal m 0 ans. " Put very briefly, the distinction betwe! 'n the offence of abetment under the seoond clause of s. 107 and that of criminal conspiracy under s. 120A is this. In the former offence a mere combination of persons or agreement between thflm is not enough. An act or illegal omission muat take place in puTHuance of the conspiracy and in order to the doing of the thing conspired for ; in the latter offence the mere agreement is enough, if the agreement is to commit an offence. So far &8 abetment by oonspiracy is concern· ed the abettor will be liable t.
o punishment under varying circumstances detailerl in ss. 108 to 117. It is unnecessary to detail those circumstanC rior object of letting in evidence whi~h would othPrwise be inadmissible and futhermore, it was undesirable to complicate a (I) A·t. R. 1960 Patna 45Q. (21 [1962] l S. C. R. 19-1. 11/0I Pramatha Nath Taluqdar v. $Moj Banj. ,. S•kllr Das J. lHl l'ramatlia Y oJA Taiwqdar '. 8aroj Baja S11 at. ed a. s one of propriety rather than of h·gality. The question of sanction was also considered in that case, but in view of the order of remand passed, no opinion waa expressed thereon. The special Bench expreBBed the view that it was not nece88ary to g:i to the Pxlent of saying that in a r. ase of this nature 88. I 20A and 120B be- came wholly irrelevant. The special Bench proce- eded on the footing that irrespective of whe th er BB.
120A and 120B became wholly irrelevant or not the second complaint undoubtedly disclosed an offence of abetment by comspirncy and it was open to the Chief Presidency Magistrate to take congnizanoe of that offence. I think that there are no good reasons for holding that the view taken by the special Jk. nch is not correct. In my opinion, the special Bench rightly overruled the objection as to the alleged violation of tho provi· eions of s. l OHA of the Code of Crimina. l Proce- dure. Now, I come to the third and principal ques- tion agitated in these appt>als. On bPhalf of one of the appellants, Saurindra Mohan Basu, Mr. Purushottam TrikumdM has argued before us that when the first complaint containing more or less the same allegat. ions was cli8miesed under s. 203 of the Code of Criminal Procednre by the Chief Presidency Magistrate, it was not at all open to his succe8sor to entertain the second complaint.
He has put the matter as one of law and has argued that tho only way of getting rid of an order of dismissal under s. 203 of the Code of Criminal Procedure kno"'n to the Code of Criminal Proce- dure is to have it act aside in accordance witl. J tho procedure laid down in ss. 436 and 439 of the Code. Ho has further argued that, as a matter of law, a seoond complaint is not entertainable as long as the order of dismissal under s. 203 of the Code • 2 S. C. R. SUPREME COURT REPORTS 323 of Criminal Procedure is not set aside by a compe- 19 6 1 tent authority. His argument is that the two deci- :f'romatha NaJA R ions in N ilratan Sen v. J ogesh Chandra Bhattacharjee(1) Tal~;dar and Kamal Chandra Pnl v. Gourchand Adhikary ( 2 ) Saroj Ranjan S1rkar should be held as good law. Section 403 of the Das J. Code of Criminal Procedure is relevant to this argument.
It embodies the well-established rule of common law that a man may not be put twice in perii for the same offence and that no man should he vexed with several trials for offences arising out of identical acts. An Explanation appended to the section says inter alia that the dismissal of complaint or the discharge of accused person is not an acquittal for the purposes of the section. If the Legislature had intrnded that the dismissal of a complaint or the discharge of an accused person would be a bar to fresh proceeding on the same allegations unless the order of dismi- ssal or discharge were set aside by a higher court, it would have said so either explicitly or by omitt- ing the I ion in Nilratan Ben's case (1) and said: " •There is no express provision in the Code to the effect that the dismissal of a complaint shall be a bar to a fresh complaint being entertained so long as th" order of dismisRa\ remains unreversed' (see per Benerjee, . T. in Nilratan Sens' v.
J ogesh Glnndra Bhattacharjee (supra). I agree in that .. If, then there be no express provision (II J. L R 23 f'al. 983. (2) (1857) J. L. R. 24 Cal 2E6, (31 (1900) I L R. 28 Cal. 211. IHI p,.. ,,. ,,,. NatA T. J"'l'4r v. S•of IUrnjon S . ,,_ DasJ. 324 SUPREME COURT REPORTS [1962] SUPP. in the Code, what is there to warrant us in implying or in effect introducing into the Code a provision of such serious import x x x ? In the absence of any other provi- sio! I in the Code to justify such an implica- tion x x x x I can appreciate no sound ground for tht> Cou1t so acting; were it to do HO it would go perilously nea1· ·to legislat. ing, instead of confining itself tu construing the Acts of the Legislature. " The question was then considered hy a Full Bench of the Calcutt. a High C·mrt in D1rarka Nath Mcnulul v. Beni Madhab Bamrje,e (1) and it was held by the Full Bench (Ghose, . J. dissenting) that a Presidency Magistrate was compPtent to rehear a warrant rein was not acrepted.
Dealing with the question Prinsep, J. said : "There is no bar to further proceedings under the law, and, tbereforP, a Magistrate to 'Vhome a complaint has been made ur:der surh circumstaQceA, is bound to pro xamin" the complaint, and, unl••ss he has reason to distrust the truth of the complaint, or for some other reason expressly recognised by law, such as, if ho finds that no olft·nre hacl het"n committPd, he is bound to take cog11izanco of 0 the offence on a was made before Debabrata. Mookcrjee, J. who heard the application in revision with regard to the first complaint. In that appli· oa. tion certain statement!! were ma. de with regard to the City Exchs. nge. Those statements did . not, however, include any a. verment as to the knowl~dge of the complainant, Promode Ra. njan Sarkar, about 2 S. C. R. SUPREME COURT REPORTS 333 the facts relating to the· City Exchange and tele- phone number "City 11091".
The application merely stated that the facts stated therein were matters of public history and it was essential in tlie ends of justice to t. ake judicial notice thereof. Debabrata Mookerji, J. apparently rejected this application but did not record any formal orders on that date. He recorded formal orders after he had dismissed the application in revision. He said therein that he was not. prepared to take into consideration the facts alleged in the application dated June, 7, 1955 as they related to new matters. The ar! lument on behalf of the appellants before us is that the facts relating to the Qity Exchange were not new matters, because the complainant, Saroj Ranjan Sarkar, nowhere said that he did not know them before. The argument, therefore, is that it does not fulfil the test of "new facts which the complainant have no knowledge of or could not with reasonable diligence have brought forword in the previous proceedings".
The learned Advocate for the respondent has, in my opinion, rightly submitted that it is somewhat illogical to say at one stage of the proceedings that the matter was a new matt(lr and could not, there- fore, be taken into consideration and at a later stage to say that it is not a new matter and there- fore could not be takan into consideration. This much, however, is clear that the matter relating to the City Exchange and in particular telephone number "City 60)1" was not at all con- sidered when the first complaint was dismissed under s. ! 103 of the Code of Criminal Procedure. This matter is of some impertance because if there was no such telephone number on January 16, 1948, the minutes of the proceedings purporting to bti of th'\t date must have come into existence on a later date. This would have great relevance and bearing on the allegation of forgery made with regard to the minutes of the proceedings dated January 16, 1948. 1961 Pramatha ,Vath Tti. tuqt/ar v.
Saroj Ranjan Sarkar DasJ. Pramath• Nath 1 al•qdar .. S1Jtt>j Rt»1jan S1ttlcar DOJ . i. 334 SUPREME COURT REPORTS [1962] SUPP. On behalf of Saurindrll. Mohan Basu it was further contended that there was not even primAJ f acie evidence against him and tho learned Chief Presidency Maitistrate was wrong in issuing process against him. It is only nec! 'BBary to point out that the learned Chief Presidency Magistnte found that there was a primAJ facie case against Saurindra Mohan Ra. im. He had attested the signature of the late Nalini Ranjan Sarkar and if that ·signature was forged, then that would be primAJ facie evidence against :Saurindra Mohan Basu also. My learned brethren have taken the view that the entertaining of the second complaint in the circumstances of this case i• a gross abuRe of the processes of the Court. I find myself unable to subscribe to that view. My conclusion is just the opposite, namely, that the f'ntertaining of the second complaint fully l!
(>rves the interc8ts of just. ice. I am further of the opinion that its dis- missal would defeat the f'nds of justie1·. In this counoction, I have already reforr~d to the two exeeptionaf circumstances \\·hirh exist : one is that the learned Chief Presidency Magistrate who dealt with the first complaint comple! Rly misdirected himself as to . the true scope and effect of ss. 203 and 204 of the Code of Criminal Procedure; the second is that Debabrata Mookerjee, J. wrongly refused to take into consideration the circumstances relating to the installation of the Cit) Exchange and telephone number "City 600 I", circumstances which had a decisive btaring on the allegation of forgery made with regard to the minutes of the proceedings dated January 16, 1948. Even a cnrsory perusal of the order of the Chief Presidency Magis- trate (Shri N. C. Chakravarti) dated August 6, l! lfi4 with regard to the first complaint shows that the learned Chief Presidency Ma'.!
istrnte proceeded on the footing as though he was trying a case based entirely on circumstantial evidence; he formulated 2 S. C. R. SUPREME COURT REPORTS 335 the tests for drawing conclusions from circumstan- tial evidence and applying those tests, he came to the conclusion that the complaint was not true. He rejected the evidence of the ha,nd-writing expert as though it was his function to try the case. He rejected the enquiry report of Shri A. B. Syam (who htJ\d that there was a prima facie case for the issue of process) on very insufficient grounds. He even went to the lC'ngth of judging for himself the peculiar characteristics of Nalini Ranjan Sarkar's hand-writing depending on the personality of the writer.
In my view, in all these matters the learned Chief Presidency Magistrate misdirected himself as to the true scope of the enquiry before him and he forgot that what he had to find was whether prima facie there was believable evidence in support of the allegations made in the complaint. This does not necessarily mean that a Magistrate dealing with a com plaint is obliged "to bind himself to a mere mechanical or a wholly uncritical acceptance of the complainant's story". Indeed, it is the duty of the Magistrate to judge the materials on which he has to make up his mind as to the sufficiency or other- wise of the ground for proceeding further with the complaint and in judging the materials he must sift them and su bruit them to a critical examination. Thi~ aspect of the question was 11rg11ed before Debabrata Mookerjee, J. and he referred to it in his judgment. I say this without meaning any dis- respect to the learned .
Judge, but it appears to me that he missed the distinction which was pointed out. by this Court in Ramgopal Ganpatrai Ruia v. The 8tate of Bombay( 1 ), namely, that the expression "sufficient grounds" occurinp: in ss. 209, 210 and 213 of the Code of Criminal Procedure does not mean sufficient grounds for the purpose of convic- tion, but means such evidence as is sufficient to put the accused person upon trial by the jury. In ss. 203 and 201, Criminal Procedure Code, the e:x:pres- (t: [I. g3a] S. C. R. 618. P1•matha Nat/a Taiu. qdar v. SarQj Ranjan Sarkar DasJ. 11111 l'r•. Wlkt J{ Ill A r. i... ,1. , v. S4~oJ 8a'ljt111 StuW o. ,J. 336 SUPREME COU. H. T REPORTS [1962] SUPP. sion is "111Iffioient ground for proceeding" which really means 111Ifficient ground for prooeding with the oomplaint. Sufficient ground for proceeding with the complaint is one matter and sufficient ground for convicting an al'cused person is quite a different matter.
It is thiB distinction which has to be kept in mind and the failure to keep suoh a di~ tinction in mind in the present case has resulted in a manifest error. Debabrata. MookP,rjee, J. detailed seven circumstances as those on whioh the com- plainant relied in support of the allegation of forgery. He then went on to deal those circum- stances as though the function of the Court then was to find out whether there was sufficient ground for convicting the accused person. I refer parti- cularly to the view expressed by the learned Chief Presidency Magistrate to the effect that one of the documents in quPstion might have been ante-dated by Nalini Ranjan Sarkar himself. This was a suggestion made on behalf of the accused persons as a possible defence to the charge of forgery and it was not the function of the Chief' Presidency Magistrate to consider the defence at that stage. Debabrata Mookerjee, J. himself said : "! £, on the other hand, the Magistrate has met the facts alleged by the comp.
11\inant by anticip&tin!? poBSible defences to the charge, thus travelling beyond the facts themselves and the inferences and the probabilititiS legitimately raised by them, he must be held to have exceeded the allowable limits of an initial t~st of the complainant's story. " Yet, the t>ossible defenoe that Nalini Ranjan Sarkar might have himself ante-dater\ the document was not only considered by the IMrnen Chief Prl'sidency Magistrate but was acoepted bv Dcbabrata Mookerjee J.. This, in my opiuic>n, clearly demon- str11. tes the manifest error or injustioe which has taken place in this case, though in the conoluding part of his 2 S. C. R. SUPREME COURT REPORTS 337 judgment Debabrata Mookerjee, J. expressed the view that he did not oonsider that t. he learned Chief Presidency Magistrate had over-stepped the permissible limits of a preliminary probe into the truth or otherwise of the complainant's story.
He further said that in his view the learned Chief Presidency Magistrate in sifting the materials offered did not dispose of them by anticipating a possible defence of the parties ; yet the one pos- sible defence to the charge of forgery was that Nalini Ranjan Sarkar might himself have ante- dated the document in question and that very de- fence was considered and accepted not only by the learned Chief Presidency Magistrate but by Debabrat~ Mookarjee, J. also. The second mistake which led to a manifest injustice was the refusal to take into considera- tion the cirumstances relating to the installation of the City Exchange and the telephone number "City 6091". Dababrata Mookerjee, J. made no orders on the application dated June 7, 1955. In his final order he said : "The application speaks for itself. I was not prepared on that date to take any notice of the new matter;; mentioned in that appli- cation and I adhere to· my decision. " In my view Debabrata Mookerjee, J.
was grievously in error in rejecting the application. As I have said earlier, the circums(ances relating to the instal- lation of the City Ex:change and telephone number "City 6091" had a decisive bearing on the- truth or otherwise of tbe allegation of forgery and to reject the application to take those circumstances into consideration really amounted to a denial of justice. Debabrata Mookerjee, J. took the view that it was a new matter which could not be taken into consideration and, pradoxically enough, the argument before us is th>\t not being a new matter it shoutd not have been taken into consideratio~ 1901 Pramallia Halli Taluqitw v. Sar9j Rattjan Sarlcar Da1J, 1961 FramaJ! oo Nath Toluqdor '· Boroj R ,.. j. ,. Sartor DosJ, 338 SUPREME OOURT REPORTS (1962) SUPP. in connection with the second complaint. Thia paradox clearly demonstrates tho injustice that will result from a. failure to ta. ko into consideration circumstances which a.
re decisive of thA allegations made in the complaint. When thA complainant made an app\icn,tion for a certificate for appeal to the Supreme Court against the order paBSed by Debs. bra. ta Mookerjoo. J. , he forcofu lly contended that the refusal to take notice of the circumstances relating to tho installation of the City Exchange a. mounted to a. . denin,l of justice. This application was dealt with by a. Bench of two Judges of the Calcutta. High Court (Das Gupta. and Bachawa. t, ,J. J. ). Tho learned Judges expressed the view that if they were dealing witb the matter, they woulrl have thought it right to refer to the 'appropriate books for ascertaining tho date on which tho City Exchange came into existence. Thry, however, felt that the matter was within the discretion of Dobabrata. Mookerjee, J. and they were not prepsrad to give a certificate in a matter of discretion. An- other point which was urged before that Bench was this.
Tho complaint was for offences triable by the Court of seSBions and the question which the learned Chief Presidency Magistrate had to put himself was not whether he, for himself, believed tho allegations to be true but whether the materials before him were snob that thereupon a reasonable body of men might believe the allegations to be true. Tho learned Judge said. : "In our judgment there is considerable force in this argument, but at the same time we have to take notice of tho fact that this question docs nrit appear to have been decided by the courts. " Since those observati~ns were made, a. decision has been given by this Court and that decision supports tho contention Lurgod on behalf of the complainant. The matter then ca. me to thia Court on an a. pplica- 2 S. C. R. SUPREME COURT REPORTS 339 tion for special leave, and specia. 1 leave was granted by this Court on February 13, 1956.
An appeal w11s filed in pursuance of that special leave, but ultimately Promode Ranjan Sarkar withdrew his appeal by filing a petition on February 3, 1959. In that petition he stated that at the intervention of common friends and well wishers of the parties, he had settled his disputes with the respondents therein and did uot want to proceed with the appeal, a statement which, iu the circumstances of this case, amounts almost to. compounding a felony. The appflal was accordingly withdrawn on March 12, 1959. The present complaint, Saroj Ranjan Sarkar, alleged in his petition of complaint th:ft the with· drawal of the appeal filed in this Court in the circu- mstances stated above was due to undue influence exercised by the. accused persons. Whether that allegation is cGrrect or not can only be determined after evidence has been led.
There are, however, circumstances which seem to me indicate that the withdrawal of the appeal in this Court was for the purpose of defeating the ends of justice. The riccused persons must have realised that if the evidence relating to the installation of the City Exchange and telephone No. "City 6091 "was a vilable and considered, then there would be no escape from the position that the minutes ol the proceed· ings of the Board meeting of N. R. Sarkar and Co. Ltd. , dated January 16, Hl48 must have been forged and this aspect of the matter was very rightly em- phasised by the learned Chief Prrsidency Mairistrate (Shri Bijayesh Mukherjee) who dealt with the second complaint as also by the Special Bench of three Judges who dealt with the matter on the revi- sion applications made against the order of the learned Chief Presidency Magistrate on the second complaint.
It is also worthy of note that this Court must have granted special leave in respect of the order passed on the first complaint, because it felt that there were arguable points in support of the 11111 Pramath. J Nall Talllfdm v. Baroj Ra"jan BCTTw DasJ. lHI p .. ,. ,,.. NIJ/t Tol"'lit. v. Soroj RIVj4" s. k4r o. , J. 340 SUPREME OOURT REPORTS (1962] SUPr. application for special leave, one of such points apparently being the . refusal to ooneider the cir-. cnmstances relating to the installation of the City Exchange. On the second complaint the learned . Chief Presillency Magistrate, as also the High Court, took those eircum~tancea into consideration and rightly helrl that thos! ' circumstanc under Art. 136 of the Constitution. The learned Chi~f Pre- sidency Magistrate and a Bench of thne Judgrs of tho Calcutta High Court held specifically on the second complaint that there was a primafacie case and the tli$missal of tho first complaint resulted in manifo~t injustice.
I set> no rea8ons to differ from the viPw thus f'Xprcsse r 22/2:J, rnuo. I would 'l. ecordingly dismiss the two appeals. The . Judgment of Kapur and Hiclayatullah, JJ. , was d r of the re8pondent did, did not lay the reBpondent open to the charge of bl11ockmail. On the merits ho took into considera- tion tho fact in regard to the City Exchange of which according to the learned Magistrate he could take judkial notice under s. 57 of the Evidence Act. He compared various signatures of the late N. R. Sarkar and after considering tho elaborate order of his predecessor he said :- "I have read and re-read it and with respect too duo to one of hi8 eminancP, b·rt it is my misfortune that I have not been per- suaded. Th r. N. N. Law and Amiya Chakravarty who wcru accused Nos. 3 and 4. • 2. S. C. R.
SUPREME COURT REPORTS 351 Against this order a revision was taken by the appellants 'to the High Court and rule was issued against the Chief Presidency Magistrate to show cause why his order should not be set aside. He shgwed cause and the matter was heard by a Divi- sion Bench consisting of P. B. Mukerjee and H. K. Bose, JJ. , and the matter was referred to a larger Bench because of the importance of the questions of law which arose in the case. Three questions were r. 'tised before the Special Bench, ( l) whether und~r the appellate side rules of the High Court it was competent for a Division Bench consisting of two judges to refer any matter to a la. rg0r bench for decisiQn in a criminal matter; (2) whether a second complaint could be enter- tain. ad on the same fa. cts after a previous complaint had been dismissed; and (3) whether the complaint ·could be taken cogniza;nce of by the llfagistrate in the absence or a sanction under s. 196A of the Criminal Prooedure Code.
On all these three points the finding or the Special Bench was against thE> appellants. It held that the attention or the Chief Justice having been drawn to the fa. ct that the case involved questions or Importance it was open to him in the exercise of his inherent jurisdiction to refer the case to a larger bench and therefore the reference was not illegal. In regard to the filing o,f a second complaint it held that a fresh complaint could be entertained after the dismissal of previous complaint under s. 203 Criminal Procedure Code when there wa9 manifest error or manifest miscarri- age of j11stioe or when fresh evidence was forth- coming. The Emch was of the opinion that the fa. ct in regard to the City Telephone Exchange was a new matter and because Pre. mode Ranjan Sarkar was not permitted to take a photosta. t copy of the ! 1,Un\1.
tes Book, it was possible that his attention was riot drawn to the City Telephone Exchange which was not in existence at the relevant time and th'lt there was sufficient reason for Pramode 1961 Pram~th 1 Nath Taluqdar v. Sart; Ra,Ya i Sarkar EapurJ, JHI Prat11IM }/atlt 7 a/~dor v, 8or1j R. nj•tl Sartor KopwJ, 352 SUPREME OOURT REPORTS (1962) SUPP. Ranjan Sarkar for not mentioning the matter of City Exchange in his complaint. It also held that the previous Chief Presidency Magistrate Mr. Chakraborty had altogethtir ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of N. R. Sarkar and he had no good reasons for not accept- ing their evidence. It could not be said therefore that there was a judicial enquiry of the matter before the previous Chief Prf'sidenoy Magistrate ; the decision was rather arbitrary and so resulted in manifest miso. uriage of justire.
The Court was of tho opinion therefore that there was no reason to differ f'rom the finding of the Chief Presidency Magistrate Mr. Bijoyesh Mukerjee and that there was a prima facie case against the appellants. Tho rules were therefore discharged. It is against this judgment and that the appellants have come in appeal to this court by Special Leave. Four appeals were filed by the two appellants, two against the order of the High Court of Calcutta. dismiBBing·,the revision petition and two against the order of the High Court refusing a certificate under Art. 134 (1) (cl of the Constitution. As this Court granted special leave a. izainst the order oft. he High Court diemil! ling the Revision Petition the two e. ppeals against the order refusing a certificate under Art. 134 (l) (c) became infructuous and ~erefore were not pressed. It is only tho appeals against the judgment and order of the High Court refusing to quash the order of the learned Chief Presidency Magistrate, Mr. Bij0yeeh .
\lukerjee, which survive for decision. The first question to be decided and that is the most vita. I quest. ion in the nase is, whether the seoond complaint filed by s~roj Ranjan Sarkar respondent should have been onwrtained T This complaint was brought on April 3, 1959, tho appeal in this Court brought by Pre. mode Ranjan Sark~r 2 S. C. R. SUPREME COURT REPORTS 353 the complainant in thE> previous complaint, having been withdrawn OQ. March 2,. 1959. The respondent holds no shares in N. R. Sarkar & Co. Ltd. He is a beneficiary under the deed of trust in trust in regard to certain number of shares. In regard to the unregistered deed of agreement appointing P. N. 'l'aluqdar as Managing Director ofN. R. Sarkar & Co. Ltd. , he can have no interest. As regards the transfer deed of 1,000 shares of N. R. Sarkar & Co. Ltd. , which it is claimed were entrusted to P. N.
Taluqdar appellant for the benefit of the respondent and his brotlrers, a separate suit has been brought and is not the subject matter of the criminal complaint, There then remains the resolu- tion of the Board dated January 16, 1948, which st'. tnds on the same footing as the appointment to Managing Diriictorship and is connected with that matter and relates to it. Under the Code of Criminal Procedure the subject of "Complaints to Magiiltrates" is dealt with in Chapter XVI of the Code of Criminal Prociidure. Thii provisions rekvant for the purpose. of thi1 case are ss. 200, 202 and 203. Section 200 doals with examination of complainants and ss. 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 ss. 202 and 203 were la. id down in Vadilal Panchal v. Dattatraya Dulaji Ohadigaoolcer('). ·The scope of enquiry under s. 202 is limited to finding .
out the truth or otherwise of the complaint in order to determine whether process should issue or not and s. 203 lays down what materials are to be considered for the purpose. lJnder s. : 03 Criminal Procedure Code the judgmPnt which Magistrate has to form must be based on the statements of. the complainant and of his witnesses and the result of the investiga- tion or enquiry if any. He must apply his mind to materffils and form his judgment whether or IJ) [1961] 1 S. C. R. I, 9, 10. IHI PrOllldtlt• N•tll TalUIJdM v. s. ,. j R.. y. ,. s. ,i.... · Kap. ,. J • 19'1 i'"ramath• NdA T"1U1Jd"' v. Baoj B.. f"' s .. 1. , Kopur ·'· 354 SUPREME COURT REPORTS [1962) SUPP. not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under s. 202, Crimi- nal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to mako his order it cannot be said that he has acted erroneouHly.
An order of dismissal under s. 203. Criminal Procedure Code, is, howe,-. ·r, no bar to the entertainment of a second com1•laint 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 can- not be said to be in the interests of just. ice that after a deeision has been given against the complain- ant upon a full consideration of his case, be or any other person should be given another opportunity to have his compliLint enquin•d into Alkih Ditta v. Karam Baksh('), Ram Narain Chaubey v. Pana- chand. Jain('), Hansabai v. Ananda(•), Doraisami v. Subramanfo. ').
In regard to the ad t can Ile e11tc1tai- ned whcr number "City 6091" on the note paper on which the resolution was typed ~matter of which the previous Mmplainant Pram ode Ranjan Sarkar was unaware and was it a fact which with reasonable diligence he could not place he· fore the M:igistrate. In the complaint filed by Pramode Rajan Sarkar no nference was made to ~be City Exchange. It is tr. ue that the question was . sought to be raised as a fresh piece of evidence before Debabrata llfooki>rjeP, J. and it was noL 111#1 Promallui Nol/I Tal r his inspection and was inspcoted. Deb&br&ta Mookarjee, J. , in dealing with t. :i. e 2 8. 0. R.
SUPREME COURT REPORTS 357 resolution of January 16, 1948, said that it was not possible on the materials available considered prima facie that the Magistrate's finding suffered from such a grave impropriety as to require inter- ference by the Court, He was of the opinion that the complainant could not have been unaware of the resolution of January 16, 1948. This he concluded from the following ; that on his own case Pramode Ranjan managed the affairs of the Company aloug with the appellant P. N. Taluqdar; that although the proceedings of the Board dated September 22, 1953, referred to the resolution of January 16, 1948 yet the ouly protest made against it by Prarnode J\anjan Sarkar was the alleged legal difficulties consequent on rene- wal of the appointment but its genuineness was not then questioned and it was queRtioned for the first time on March 17, 1954, when the complaint was lodged. Against the judgment and order of Debab- rata Mookerjee J.
, Special Leave to appeal to this C,ourt was obtained and. one of the points ~aken in the application was that the resolution was typed on a sheet of paper bearing Telephone No. City 6091 although this Telephone Exchange did not come into existence till December 28, 1948. It is significant that Pramode Ranjan Sarkar did not mention when he came to know iibout the existence of this new fact. It was not; therefore, made clear to the learned ,Judge atleast upto that stage as to when, before or after the filing of the first complaint Pra. mode Ranjan Sarkar came to know about the existence of this piece of evidence to which so much importance is attached. Debabrata Mookerjee, J. , also said in hiR judgment that the affairs of the Company were managed by Pramode Ranjan Sarkar and the appellant P. N. Taluqdar and that it was difficult to believe that he (Pramode Ranjan) had no access to tho Minutes Book which showed that he himself JMI Pramatha Naik Taluqdar v. Sa,oj Ranjan Satk111 Kapu.
- J. 1HI Pr-. Na1i Toliiqw •• S. aj R. ,,;. S. b ,.. ,.. 1. 358 SUPREME COURT REPORTS [1962J SUPP. had presided over several meotings and also that there was nothing extraordinary a. bout the proceed- ings being typed on separate sheets of paper and the sheets of paper being pe. sted in that Minutes Book becaUEc on some of them there wore his own s:gnatures and it we. s, difficult to believe that ta. m· pering with the records went on "systematically" for several months without Pramode Ranjan :Sarkar having seen the Book or detected tho tampering. It was, therefore, impo88ible to blame the previous Chief Presidency Magistrate if he held in those circumsta. rrnes that there was no forgery in the Minutes Book or ta. mporing with it. The following pe. ssage from the learned Judge's judgment is significant :- "Photographs of the impugned documents were ta. ken on the 13th October when the Minutes Book was inspected. On the la. st mentioned date the compla~nt was certain a.
boul the entire book having been tampered with; but nothing appears to have been said about it , no challenge made, no protest entered until full five months pe. ssed whein at la. st the silence was broken and the ~omplaint waa lodged on the 17th March, 1954. It is of course not known what was said a. bout it in tho in formation to the police. Theae circums· tancC's a. re explicit in the complainant's case. That case ha. a only to be presented for these fea. 1ures to be seen, and the Magistrate could not possible havo overlooked them. His clear finding is that the Minute Book is genuine. I am not in a. position to say it is improper on a. prima facif. consideration of the evidence offered. " Dea. ling with the question whether the eigna. · tures of N. R. Sarkar wore forged, the learned Judge a. greed a. ft. er considering the whole evidence that the signatures were not t·orged. 2 s. c. R.
SUPREME COURT REPORTS 359 The complaint of the present complaint Saroj Rajan Sarkar specifically mention the Cit;} Exchange and that it ca. me into existence later. He also alleges that this fact was not known to the previous complaint,· Pramode Ranjan Sarkar, and in support there is the affidavit of Santi Ranjan Sarkar. Significantly enough . in that affidavit. also it is not stated as to when the deponent came to know about this alleged new· fact of the Telephone City Exchange. All that the affidavit says il! l that it is a matter of history and was published in the Statesman of Dt:cember 29, 1948. There is no evidence on the record to show as to when the matter of "City Exchange" came to be known to the ·persons who were then and two those who are now prosecuting the crimi- nal complaints. The document which we have referred to above i. e. , the letter wdtten by tb.
e Solicitor dated October-13, 1953 shows that Santi &anjan Sarkar was present as agent of Pramode Ranjan Sarkar at the time of the inspection. The complaint filed by Saroj Ranjan Sarkar states :- "That with great difficulty the documents in question were inspected, certified true copies of the alleged resolutions of the Boa. rd meetings were obtained and photostatic c? pies of material portions including alleged s1gna. tures of late Sri Sarkar on the said Deed of Agreement and on the Deed of Transfer could be obtained, as will appear fro1n correspondence in this respect. " 1901 Pramatha Nath TaJuqdar v, Sd(! j Rary·an Sarkar Kapur J. In the. c. omplaint filed by Pramode Ranja. n Sarkar exactly the · same language was used in paragraph 10 of the previous complaint. If certi- , fied copies were obtained by the complainant Pramod~ Rai;ijan Sarkar and inspection was ta.
ken / by Santi RanJan Sarkar for Pramode Ranjan Sarkar and by his Solicitor and the facts are as they are J#l p,_ discussed the seven circumstances which were relied upon by the then complainant Promode Ranjan Sarkar in support of the allegations of forgery. After dealing with these various points raised he held :- "It may be that one or two items of evi- dence were not epecilically referred to in the Order but that does not neoe8811. rily imply that those items of evidence were not present to the mind of the Ma. gistrMe. After all a Magistrate is only required to record briefly his reasons for diamissing 1961 Pramatha . NiJth Ta! uqdar v, Saroj Rt1njan Sarka1 Kapur J. 1go1 p,. ,.. ,. _ 'Noth T al"f · In Ramgopal, Ganpatrai Ruia'8 case (') the followi. Dg observations of Sinha J. , (as he then was) in regard to the expression "sufficient grounds" a.
re perti- nent: "The controversy has centred round interpre- tation of- the words "sufficient grounds", occurring in the relevant_ sections , of the Code, set out above. In the earliest case of Lachrnan v. Juala (1882) I. L. R 5 All. 161, decided by Mr. Justice Mahmood in the Allahabad High Court, governed by s. 195 of the Criminal Procedure Code of (I) A,l,R. 1927 Lab, 30. (2) (1961] I S. C. R. 1,9,10• lS) (19581 s. c. R. 618, 634. IHI PramotM b' ath Taluqdar v. Saro} Rania• Sarkar Kapur J. IHI PramaU. a N•l" r . i"""'' v. Soroj RanjOll Sarkar K. pur J. 364 SUPREME COURT REPORTS [1962) SUPP. 187 OlilW. by MHicipal. it11-0rck• by Gow"'""'"' pro'ftihUi"'1 i•~V aliditv of-Bo,.. ba11 Dia/. riQ Jt1. ,&iciptilAcl, 1901 (Boa. t:/ 1901), •· 69-00Mlit• tio. ,. of lt&dia, Art. U.
~ Mirr folloWiog the prooed~ prtteribed by the Bombay Dl1trict Municii-1 Act, 1901, and al'lrr obtaining the requisite oanction of the Government, the apptllant lm)><*d an octroi tax on milk brought within itl limlta for conmmption, uae or aale therein. Shortly afterward1 the Government passed an •
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