ORDER
B.D. Singh, J.
1. This application under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) has been preferred by the sole petitioner against the order dated 22-8-69 of the Sub-divisional Magistrate taking cognizance against the petitioner.
2. In order to appreciate the point for consideration in this application it will be necessary to mention briefly the facts. On 11-8-69 one Sardha Pahan filed a petition of complaint before the Sub-divisional Magistrate stating therein that about a month earlier the petitioner got cut six Sarna Sal Trees in Village Dulli. Police Station Khelari in the district of Ranchi by employing certain persons. Those trees, according to the complainant, were pious and religious and they were worshipped by the community to which the complainant belongs, as deities. The complainant along with the witnesses named in the petition went to the petitioner and requested him not to get those trees cut. Thereupon the petitioner threatened the complainant and his witnesses with dire consequences. The complainant along with his witnesses then went to opposite party Ram Das Singh, Mukhia of the village and informed him about the incident, who directed them to go to the police station or to the Court. Then the complainant along with the witnesses and Mukhia went to the Ranger of the forest. The Ranger also did not seize the pieces of the cut trees. It was further stated in the complaint petition that on the previous night, i.e., on the night between the 10th and 11th August, 1969, the petitioner lifted the cut timber trees on a truck. The complainant, therefore, prayed that action might be taken against the petitioner under Sections 379 and 295 of the Indian Penal Code. The Magistrate examined the complainant Sardha Pahan on solemn, affirmation as required under Section 200 of the Code and sent a copy of the complaint to Shri J. P. Singh, Magistrate, first class, for enquiry and report by the 1st of September, 1969.
3. In the meantime on the 22nd of August, 1969, the said complainant filed a petition before the Magistrate stating inter alia that at the instance and the threat given by the Mukhia Ramdas Singh and one Brajkishore Prasad Sahu, he had filed the said complaint on the 11th of August, 1969 against the petitioner and the entire allegations made therein were incorrect and had been made at the instance of the said Mukhia and Brajkishore Prasad Sahu. Along with the said petition he also filed affidavits of four persons named as witnesses in the complaint petition in support of his contention.
4. The learned Magistrate having considered the petition and the affidavits and after hearing the lawyer of the complainant dismissed the petition of complaint under Section 203 of the Code and recalled the enquiry which he had directed to be made by Shri L. P. Singh. A copy of the said order dismissing the complaint is marked as Annexure 1 to this petition. It will be useful to quote a portion of the observation which reads :
“…..It is regretted that a poor and innocent tribal was made an instrument for filing a false case against a responsible police officer. The conduct of particularly Mukhia is deplored. In view of the fact that the complainant is a tribal who naturally succumbed to the pressure of the Mukhiya and Braj Kishore Sahu and also in view of the fact the ultimately the complainant was unable to shake off the undue and unreasonable pressure of the Mukhiya and others and has gathered courage to seek the whole truth before the Court, I do not consider in necessary to take action to prosecute him Under Section 211 I. P. C…..”
5. On the same date, just after the complaint of Sardha Pahan was dismissed, the Mukhia Ramdas Singh filed another petition of complaint before the same Magistrate substantially on the very same allegation as was made by Sardha Pahan in his complaint petition. The Sub-divisional Magistrate entertained this complaint petition filed by the Mukhia and examined the complainant Ramdas Singh on solemn affirmation and adjourned the case to the 26th of August, 1969 for further orders, by the impugned order dated 22-8-69.
6. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of the petitioner, assailed the order and urged that the learned Magistrate erred In entertaining a fresh complaint against the petitioner without any fresh material after he had dismissed the complaint filed by Sardha Pahan on the same date. Learned counsel submitted that the allegations made in the two complaint petitions referred to above were substantially the same. After having dismissed the prior complaint petition, and after having recalled the enquiry, the Magistrate should not have entertained the second complaint at the instance of the Mukhia. No exceptional circumstance had been made out for entertaining the complaint. In the impugned order also nothing has been mentioned to show as to whv the second complaint Was being entertained by the learned Magistrate on the same facts. In order to substantiate his contention learned counsel relied on a decision of the Supreme Court in Pramatha Nath Taluk-dar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 where their Lordships at page 899 in paragraph 48 observed :–
“…..An order of dismissal under Section 203, 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 Interest of justice that after a decision has been 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 …..”
7. On the other hand, Mr. Jal Narain learned counsel appearing on behalf of the opposite party, contended that the revision application against the impugned order which was passed under Section 200 of the Code, is not maintainable at the instance of the petitioner. He referred to Chapter XVI of the Code which contains Sections 200, 201, 202 and 203. He urged that accused is not a party in any proceeding taken under Chapter XVI. He comes into picture only after the issue of processes under Section 204 of the Code which falls under Chapter XVII. The case reported in AIR 1962 SC 876 (supra) related to a matter when the processes were issued against the accused. In the instant case notice was not vet served against the petitioner. He further urged that by order dated 23-8-69 Shri R. C. P. Sinha. Magistrate, first class, was directed to make enquiry and report on the complaint filed by the opposite party, as required under Section 202 of the Code. It is not known till then what will be the report. Therefore, he submitted that the application filed by the petitioner in the High Court is also premature. In my opinion, this contention of learned counsel for the opposite party cannot be accepted. It is well established that when the illegality in an order comes to the notice of the High Court, it has ample power under Section 439 of the Code to set the order right by setting it aside even if no revision is filed against it. No doubt, it was desirable for the petitioner to have waited till the notice was served upon him but in my opinion, that does not bar the petitioner from coming to the High Court after he learnt somehow or other about the impugned order, which according to the petitioner, was bad in law.
8. Learned counsel for the opposite party further urged that there was no illegality in the impugned order. The Magistrate was bound to take cognizance on the complaint filed by the opposite party, and was bound to proceed to examine the complainant on oath. No doubt, that was the view of some High Courts, but now it is well established that the Magistrate is not bound to take cognizance under S_ 200 of the Code, In Bharat Kishore Lal Singh Deo v. Judhistir Modak, AIR 1929 Pat 473 a Full Bench of this Court at page 475 observed :–
“…..Section 200 and Section 202 which impose upon the Magistrate the duty of examining the complainant on oath are only applicable where the Magistrate proposes to take proceedings upon the information supplied by the complainant. And if he intends to issue process upon that basis then it is incumbent upon him to examine the complainant on oath, but not otherwise and indeed if the opposite were the rule a paralysis of business might take place. A Magistrate may well be visited from time to time by persons who simply put before him a
document in writing alleging an offence …..”
A similar view was taken in Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 where their Lordships observed that a Magistrate is not bound to take cognizance. Hence it cannot be held that whenever a complaint is presented to a Magistrate he is legally bound to entertain it. In my opinion, on the facts and in the circumstances of the instant case, there was a gross abuse of the process of the Court of the learned Magistrate, when he entertained the second complaint by the impugned order. It may be recalled that on this very day, when he entertained the second complaint, he had dismissed the first complaint under Section 203 of the Code, which was filed on the same allegation by Sardha Pahan. The learned Magistrate does not mention in the impugned order any valid reason for entertaining the second complaint. If there was any material for entertaining the second complaint he could have mentioned it therein. As it has been observed by their Lordships of the Supreme Court in AIR 1962 SC 876 (supra), he ought to have mentioned the exceptional circumstances, for example, that his previous order was based on an incomplete record or misunderstanding of the nature of the complaint, or some new facts had come to light which could not with reasonable diligence had been brought on the record, when he was considering the complaint which was filed by Sardha Pahan. Even in the second complaint, which was filed by the opposite party, there is no any such allegation-Learned counsel for the opposite party submitted that Sardha Pahan under the influence of the petitioner filed the petition dated the 22nd of August, 1969 withdrawing the allegation made in the complaint against the petitioner and he also due to that reason, got the four affidavits of the witnesses filed along with it, and that led to the dismissal of the first complaint by the learned Magistrate. But, in my opinion, this submission of learned counsel cannot be accepted as there is no such allegation in the complaint which was filed by the opposite party, nor there is any such indication in the impugned order.
9. Learned counsel for the opposite party lastly contended that the learned Magistrate erred in dismissing the complaint, which was filed by Sardha Pahan, under Section 203 of the Code-He submitted that the dismissal order was passed on incomplete record. According to him, the learned Magistrate ought to have waited till the enquiry report was received from Shri J- P- Singh. He had fixed 1-9-69 for Shri J. P. Singh to submit his report. Before it was actually received by the Magistrate, on 22-8-69, only on the basis of the petition filed by Sardha Pahan and the four affidavits filed by the witnesses, the Magistrate passed the order dismissing the complaint. Learned counsel in order to support his contention relied on a decision of the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430 and he drew my attention to paragraph 12 of the judgment at pages 1434 and 1435 where their Lordships observed that the Magistrate while acting under Section 203 of the Code has to satisfy himself that there was sufficient ground for the proceeding. They further observed that in order to come to the conclusion, he was entitled to consider the evidence taken by him or recorded in an enquiry under Section 202 of the Code or statements made in an investigation under that section, as the case may be. But, in my opinion this observation does not help the contention of learned counsel because their Lordships have said that the Magistrate is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202. Therefore, their Lordships have clearly used the disjunctive word “or”. Hence, on the facts and in the circumstances of the case, it was not necessary for the Magistrate to have waited till he received the enquiry report. Learned counsel further relied on another decision of the Supreme Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113 where their Lordships in paragraph 10 at page 1117 observed that Section 203 makes it clear that the judgment which the Magistrate has to form must be based on the statement of the complainant and his witnesses and the result of the investigation or enquiry. But, in my opinion, this observation also does not support the contention of learned counsel because their Lordships have further held in this very paragraph that the Magistrate is not bound to accept the result of the enquiry or an investigation. The whole purpose of the enquiry is to find out whether or not there is a sufficient ground for proceeding. If the Magistrate, on the petition of Sardha Pahan and the four affidavits filed by the witnesses, was satisfied that the allegation contained in the complaint was maliciously false, he was justified in dismissing the complaint and withdrawing the enquiry. Besides, their Lordships in that very paragraph 10 have observed that no universal rule can be laid in respect of such questions. In my judgment, therefore, this contention of learned counsel also cannot be accepted. If Sardha Pahan would have filed similar petition supported by the affidavits of four witnesses before the Enquiring Magistrate the latter would have reported to the Sub-divisional Magistrate that no prima facie case had been made out and, therefore, the result would have been the same. Besides considering the petition of Sardha Pahan and the four affidavits which were placed before the Magistrate, he was convinced that the allegations in the complaint against the petitioner were maliciously false and therefore, in my view, he rightly recalled the enquiry and dismissed the complaint. After having done so, in my considered opinion, the same learned Magistrate was not right in entertaining the second complaint filed on behalf of the opposite party on the same allegation without assigning any reason whatsoever.
10. In the result, the application is allowed and the impugned order dated the 22nd August, 1969, is set aside. However, I wish to make it clear that if another complaint is filed against the petitioner on fresh materials, the Magistrate has ample jurisdiction to entertain
the same in accordance with law.
