REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2160   of 2011 (Arising out of SLP(Crl.) No. 2768 of 2010)

Shiv Shankar Singh                   …Appellant

Versus

State of Bihar & Anr.                                                   …Respondents                      

J U D G M E N T

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order  

dated  6.5.2009  passed  by  the  High  Court  of  Judicature  at  Patna  in  

Criminal Miscellaneous No. 36335 of 2008, by which the cognizance  

taken  by  the  Magistrate  vide  order  dated  2.8.2008  against  the  

respondent  no.2  under  Section  395  of  the  Indian  Penal  Code,  1860  

(hereinafter called `IPC’) has been quashed.  

2. Facts and circumstances giving rise to this case are that:

A. A  dacoity  was committed  in  the  house  of  present  appellant  

Shivshankar  Singh  and  his  brother  Kameshwar  Singh  on  6.12.2004

wherein Gopal Singh son of Kameshwar Singh was killed by the dacoits  

and lots  of  valuable  properties  were looted.   The police reached the  

place  of  occurrence  at  about  3.00  AM  i.e.  about  2  hours  after  the  

occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the  

appellant naming Ramakant Singh and Anand Kumar Singh alongwith  

15 other persons under Sections 396/398 IPC.  

B. However, Kameshwar Singh, the real brother of the appellant  

and father of Gopal Singh, the deceased, approached the court by filing  

a case under Section 156 (3) of the Code of Criminal Procedure, 1973,  

(hereinafter  called `Cr.P.C.’).  Appropriate orders were passed therein  

and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004  

in  respect  of  the  same  incident  with  the  allegations  that  the  present  

appellant,  Bhola  Singh,  son  of  the  second  complainant  and  Shankar  

Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as  

the accused wanted to grab the immovable property.   

C. Investigation in pursuance of both the reports ensued. When the  

investigation in pursuance of both the FIRs was pending, the appellant  

filed Protest Petition on 4.4.2005, but did not pursue the matter further.  

The court did  not pass any order on the said petition.  After completing  

investigation  in  the  Report  dated  6.12.2004,  the  police  filed  Final  

Report under Section 173 Cr.P.C. on 9.4.2005 to the effect that the case  

was totally false and Gopal Singh had been killed for property disputes.  

2

D. After  investigating the other  FIR filed by Kameshwar  Singh,  

father  of  the  deceased,  charge-sheet  was  filed  under  Sections  302,  

302/34, 506 IPC etc. on 29.8.2005 against the appellant,  Bhola Singh,  

son of complainant and others.  The matter stood concluded after trial in  

favour of the accused persons therein.  

E. It was on 22.9.2005, the appellant filed a second Protest Petition  

in respect  of the Final Report dated 9.4.2005.  After considering the  

same and examining a very large number of witnesses, the Magistrate  

took  cognizance  and  issued  summons  to  respondent  Anand  Kumar  

Singh and others vide order dated 2.8.2008.

F. Being  aggrieved,  the  respondent  Anand  Kumar  Singh  filed  

Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated  

2.8.2008 which has been allowed by the High Court on the ground that  

second Protest Petition was not maintainable and the appellant ought to  

have pursued the first Protest Petition dated 4.4.2005.  

Hence, this appeal.  

3. Shri  Gaurav  Agrawal,  learned  counsel  appearing  for  the  

appellant has submitted that the High Court failed to appreciate that the  

so-called first Protest Petition having been filed prior to filing the Final  

Report was not maintainable and just has to be ignored. The learned  

Magistrate  rightly  did  not  proceed  on  the  basis  of  the  said  Protest  

3

Petition and it  remained merely a document in the file.   The second  

petition was the only Protest Petition which could be entertained as it  

had been filed subsequent to filing the Final Report.  The High Court  

further  committed  an  error  observing  that  the  Magistrate’s  order  of  

summoning the respondent No.1 was vague and it was not clear as in  

which Protest Petition the order had been passed. More so, the facts of  

the case in  Joy Krishna Chakraborty & Ors. v. The State & Anr.,  

1980 Crl. L.J. 482,  decided by the Division Bench of the Calcutta High  

Court and solely relied by the High Court were distinguishable as in the  

said  case  the  first  Protest  Petition   had  been  entertained  by  the  

Magistrate  and  an  order  had  been  passed.  Protest  Petition  is  to  be  

treated  as  a  complaint  and  the  law  does  not  prohibit  filing  and  

entertaining  of  second  complaint  even  on  the  same  facts  in  certain  

circumstances.  Thus, the judgment and order impugned is liable to be  

set aside.  

4. On the contrary,  Shri  Awanish  Sinha  and Shri  Gopal  Singh,  

learned counsel appearing for the respondents have vehemently opposed  

the appeal  contending that the second petition was not maintainable  

and the appellant ought to have pursued the first Protest Petition. The  

High  Court  has  rightly  observed  that  the  order  of  the  Magistrate  

summoning the respondent  No.1 and others  was  totally  vague.  Even  

otherwise, as the appellant himself had faced the criminal trial in respect  

4

of  the  same  incident,  he  cannot  be  held  to  be  a  competent/eligible  

person to file the Protest Petition.  He had purposely lodged the false  

FIR promptly after committing the offence himself. Therefore, the facts  

of the case do not warrant any interference by this court and the appeal  

is liable to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.  

6. We do not find any force in the submission made on behalf of  

the  respondents  that  as  in  respect  of  same  incident  i.e.  dacoity  and  

murder of Gopal Singh, the appellant himself alongwith others is facing  

criminal  trial,  proceedings  cannot  be  initiated  against  the respondent  

No.1 at his behest as registration of two FIRs in respect of the same  

incident is not permissible in law, for the simple reason that law does  

not prohibit registration and investigation of two FIRs in respect of the  

same incident in case the versions are different.  The test of sameness  

has to be applied otherwise there would not be cross cases and counter  

cases. Thus, filing another FIR in respect of the same incident having a  

different version of events is permissible.  (Vide: Ram Lal Narang v.  

State (Delhi Admn.), AIR 1979 SC 1791;  Sudhir & Ors., v. State of  

M.P., AIR 2001 SC 826; T.T. Antony v. State of Kerala & Ors., AIR  

2001 SC 2637; Upkar Singh v. Ved Prakash & Ors.,  AIR 2004 SC  

4320;  and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254).  

5

7. Undoubtedly, the High Court has placed a very heavy reliance  

on  the  judgment  of  the  Calcutta  High  Court  in   Joy  Krishna  

Chakraborty  &  Ors.  (supra),  wherein  the  Protest  Petition  dated  

19.3.1976 was  entertained by the  Magistrate  issuing direction  to  the  

Officer-in-Charge of the Khanakul Police Station under Section 156(3)  

Cr.P.C.  to  make the investigation and submit  the report  to the court  

concerned  by 10.4.1976. The  Officer-in-Charge  of the said police  

station  did  not  carry  out  any  investigation  on  the  ground  that  the  

incident  had  occurred  outside  the  territorial  jurisdiction  of  the  said  

police  station.   The  second  Protest  Petition  filed  by  the  same  

complainant on 23.3.1976 was entertained by the learned Magistrate.  In  

fact, it was in this factual backdrop that the Calcutta High Court held  

that the matter could have been proceeded with on the basis of the first  

Protest  Petition  itself  by  the  Magistrate  and  second  Protest  Petition  

could not have been entertained.  

8. The facts  of  the  present  case  are  completely  distinguishable.  

Therefore, the ratio of the said judgment has no application in the facts  

of this case.  

9. In  Bhagwant Singh  v. Commissioner of Police & Anr., AIR  

1985 SC 1285, this Court dealt with an issue elaborately entertaining  

the writ petition and accepting the submission in regard to acceptance of  

6

the  Final  Report  to  the  extent  that  if  no  case  was  made  out  by  the  

Magistrate, it would be violative of principles of natural justice of the  

complainant and therefore before the  Magistrate drops the proceedings  

the informant is required to be given hearing  as the informant must  

know what is the result of the investigation initiated on the basis of first  

FIR.  He is the person interested in the result of the investigation. Thus,  

in case the Magistrate takes a view that there is no sufficient ground for  

proceeding further  and drops  the   proceedings,  the  informant  would  

certainly be prejudiced and therefore, he has a right to be heard.

10.    In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432,  

this Court held that the second complaint  lies if  there are some new  

facts or even on the previous facts if the special case is  made out.  

Similarly,  in  Pramatha  Nath  Talukdar  v.  Saroj  Ranjan  

Sarkar, AIR 1962 SC 876, this Court has held as under:  

“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 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   

7

should  be  given  another  opportunity  to  have  his   complaint enquired into.”

11.      After considering the aforesaid judgment along with various  

other judgments of this Court,  in  Mahesh Chand v. B. Janardhan  

Reddy & Anr., AIR 2003 SC 702,  this Court held as under:  

“..It is settled law that there is no statutory bar in filing   a second complaint on the same facts. In a case where   a  previous  complaint  is  dismissed  without  assigning   any reasons,  the Magistrate under Section 204 CrPC  may take cognizance of an offence and issue process if   there is sufficient ground for proceeding….”  

In Poonam Chand Jain & Anr v. Fazru, AIR 2005 SC 38, a similar  

view has been re-iterated by this Court.

12.         In Jatinder Singh & Ors. v. Ranjit Kaur, AIR 2001 SC 784,  

this Court held that dismissal of a complaint on the ground of default  

was no bar for a fresh Complaint being filed on the same facts.

              Similarly in Ranvir Singh v. State of Haryana, (2009) 9  

SCC 642, this Court examined the issue in the backdrop of facts that the  

complaint  had  been  dismissed  for  the  failure  of  the  complainant  to  

put in the process fees for effecting service and held that in such a fact-  

situation second complaint was maintainable.       

13. Thus,  it  is  evident  that  the  law  does  not  prohibit  filing  or  

entertaining of the second complaint even on the same facts provided  

the  earlier  complaint  has  been  decided  on  the  basis  of  insufficient  

8

material or the order has been passed without understanding the nature  

of the complaint or the complete facts could not be placed before the  

court  or  where  the  complainant  came  to  know  certain  facts  after  

disposal of the first complaint which could have tilted the balance in his  

favour. However, second complaint would not be maintainable wherein  

the earlier complaint has been disposed of on full consideration of the  

case of the complainant on merit.  

14. The Protest Petition can always be treated as a complaint and  

proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case  

there is no bar to entertain a second complaint  on the same facts,  in  

exceptional circumstances, the second Protest Petition can also similarly  

be entertained only under exceptional circumstances.  In case the first  

Protest  Petition  has  been  filed  without  furnishing  the  full  

facts/particulars  necessary  to  decide  the  case,  and  prior  to  its  

entertainment by the court, a fresh Protest Petition is filed giving full  

details, we fail to understand as to why it should not be maintainable.  

15. The instant  case is required to be decided in the light  of  the  

aforesaid settled legal propositions.  

Order  dated  2.8.2008  passed  by  the  Magistrate  concerned  is  

based on the depositions made by the appellant-Shivshankar Singh,  and  

a very large number of witnesses, namely, Sonu Kumar Singh, Suman  

Devi,  Nirmala  Devi,  Ganesh  Kumar,  Udai  Kumar  Ravi,  Ram Achal  

9

Singh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr.  

Narendra Kumar. More so, the  record of the Sessions Trial No. 866 of  

2005,  wherein  the  appellant  himself  has  been  put  to  trial  was  also  

summoned  and  examined  by  the  learned  Magistrate.  Thus,  the  

Magistrate further took note of the fact that for the same incident, trial  

was pending in another court.  After appreciating the evidence of the  

complainant  and other  witnesses  deposed in the enquiry,  the learned  

Magistrate passed the following order :  

“On  the  basis  of  aforesaid  discussion,  I  find  that   there  are  materials  available  on  the  record  to   proceed  against  the  accused  person.  A  prima-facie   case  under  Section  395  IPC  has  been  made  out   against  all  the  accused  person  of  this  case.  O/c  is   directed to issue summons on filing of the requisite.   Put  up  the  record  on  13.8.2008  for  filing  of  the   requisites.”    

16. The High Court without taking note of the aforesaid evidence  

set  side  the  order  of  the  Magistrate  on  a  technical  ground  that  the  

second Protest  Petition was not maintainable without considering the  

fact that the first Protest Petition having been filed prior to filing of the  

Final Report was not competent.  More so, the High Court without any  

justification made the following remarks:  

“The Court can only record that the learned Judicial   Magistrate  has  not  conducted  himself  in  a  fair   manner  because he has intentionally left the impugned order   vague  as  to  which  protest  petition  he  was  acting   

1

upon,  so  that  advantage  may  accrue  to  Opposite   Party No.2.”

17. In our opinion,  there was no occasion for the High Court to  

make  such  sweeping  remarks  against  the  Magistrate  and  the  same  

remain unjustified and unwarranted in the facts and circumstances of  

the case.   

18.      In view of the above, the appeal succeeds and is allowed. The  

order impugned of the High Court  is  set  aside and the order  of  the  

Magistrate is restored. Respondent No.1 is directed to appear before the  

Magistrate  on  1.12.2011  and  the  learned  Magistrate  is  requested  to  

proceed  in  accordance  with  law.   However,  we  clarify  that  any  

observation  made  in  this  judgment  shall  not  adversely  prejudice  the  

cause of the respondent  to seek any further relief  permissible in law as  

the said observations have been made only to decide the controversy  

involved herein.  

……………………….J. (Dr. B.S. CHAUHAN)

 ………………………..J. (T.S. THAKUR)

New Delhi,  November 22, 2011

1

1