DECLARATION OF CIVIL DEATH , A PRAGMATIC APPROACH

 DECLARATION OF CIVIL DEATH,

A PRAGMATIC APPROACH

 

Rajneesh Mohan Verma

Deputy Director 

JTRI, UP, Lucknow

Abstract:

This article is an attempt to analyze the Law on declaratory decrees relating to civil death. This area of law, and especially the question of maintainability of a civil suit for declaration of civil death, had been a matter of academic debate for a long time. A critical and technical approach by the courts in such suits resulted in no relief to the dependents of a person missing for more than seven years.  In this paper, an attempt is made to develop a positive approach by enlightening the legal parameters towards giving relief to the dependents of a person missing for more than seven years. This paper also includes the essential elements of such suits and the model format of a decree declaring civil death.

KEYWORDS:  Statutory Fiction, Civil Death, Declaration, Right, Status, Presumption

I. INTRODUCTION

Death is the phenomenon of the termination of physiological functions of creatures, including humans. Death as a philosophical concept is "the termination of life on earth, the separation of the soul from the body.  Death as a biological concept is the termination of life. Death is a legal fact, categorized as a natural event that occupies a special position among other legal facts. This is not only linked to the psychological influence of relatives, but, at the same time, it directly affects the legal capacity of a person. The dead person ends his biological life, but he continues to remain part of some juridical consequences because from the juridical point of view, it is considered as a legal fact which entails the beginning, the changes or the termination of legal relations. Death is also a fact that brings the acquisition of rights and obligations for a group of people. Some legal relationships begin with the verification of death as; property rights and obligations which exceed the inheritance to the heirs. Instead, some other relationships terminate as of the dissolution of the marriage. Besides the natural death of the person, which is due to the termination of all its physiological functions, the law provides for civil death, which presumes a possible natural death. Civil death is the status of a  person deprived of all civil rights, it is equivalent in its legal consequences to natural death. In this article an attempt is made to analyze the concept of a statutory fiction in the form of civil death and as to whether a civil suit is maintainable for declaration of civil death? if yes whether such relief could be granted as an ancilary relief only or as main relief too?

When can a person be presumed dead?

An individual is presumed to be alive until he is announced dead. Up to that point, no one has the authority to manage the deceased individual's assets (regardless of whether claimed exclusively or mutually), life insurance, and it may not be possible to replace the individual as a regulator of a trust or organization. The assets are viably 'frozen', and no one has the authority to manage them. Depending upon the conditions it can bring about trouble and difficulty for the individual's family, employees, and creditors. If the individual had made a power of attorney before he went missing, things could continue as though the individual was alive at that point in certain regards. In this regard, it is essential that the factum of the civil death of a person missing for more than seven years must be declared. Sections, 107 and 108 of the Indian Evidence Act provide the procedure for proving the life and death of such a person which are as under:-

107.  The burden of proving the death of a person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. The burden of proving that person is alive who has not been heard of for seven years.- Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Maintainability of Civil Suit:

There are two different views about the maintainability of a civil suit for the declaration of civil death. One is in the favour of maintainability and another is against it. those who believe in the positive and pragmatic approach are in favour of the relief but others are not. I do not hesitate to mention here that it is basically confusion created by the school of technical interpretation. In other words, the law is clear on the issue, but there are academic discussions that actually affects the judicial minds and approach towards the relief of declaration of civil death. the technical views which are against the maintainability of such suit are based on the following arguments:-

1. That sections 107 and 108 of the Evidence Act do not create any substantial right or cause of action in favour of any person. it is only a rule of evidence. that is why no one can claim civil death as a right.

2. The death of any person is such a fact which cannot be claimed as a matter of right. 

3. The third argument against maintainability is that in a suit for declaration of civil death the plaintiff seeks the declaration of some other person not of his own and under section 34 of specific Act plaintiff could seek a declaration of his legal status only.

4. there is no one in such a case to deny such legal character and in such a situation, a suit under section  34 of the Specific Relief Act is not maintainable.

5. Some Judicial minds are of the opinion that if the plaintiff seeks a declaration of civil death as an ancillary relief along with the main relief only then such suit would be maintainable. a suit for mere declaration of civil death is not maintainable.

These grounds against such declaration may appear to be well reasoned but Actually, they are not, as for as the declaration of civil death is concerned. Let us examine and answer the arguments one by one.

1. The first argument is That sections 107 and 108 of the Evidence Act do not create any substantial right or cause of action in favour of any person. it is only a rule of evidence.

I also agree that these sections are only a Rule of evidence, and they only provide for a presumption as for as the life and death of an individual is in question in any proceeding. section 108 provides for a presumption of death and shifting of the burden to rebut it. But it does not mean that suit for declaration of civil death is not maintainable. Because the relief of declaration of civil death in itself is a distinct and independent relief recognized under the various laws and precedents. declaration of civil death could be based on different grounds, and the missing of a person for several years is only one of those grounds.    

 Now I find it my duty to say, that one should not be confused with the claim of declaratory relief of civil death and procedure to prove the facts which are essential to get the relief of the declaration of civil death.  the relief for declaration of civil death is actually a separate,  distinct and extraordinary relief. The term 'Civil death" is not even used under section 108 of the Evidence Act.  The only role of section 108 is to establish the presumption of death or fiction of death before the court by proving the fact of missing of the person regarding whom such relief is sought, if this presumption is not rebutted the same will be deemed to be proved. It is the same concept like if the remedy for declaration of the legitimacy of a child is sought in a civil suit, then such a suit is decided with the help of section 112 of the Indian Evidence Act. Section 112 of the Evidence Act provides a mode to establish the conclusive proof of legitimacy, it is also a Rule of evidence. In other words, the Declaration of the status of legitimacy may be sought with the help of the Rule of evidence provided under section 112 of the Evidence Act, which talks about the conclusive proof of legitimacy. But the declaration of legitimacy is a separate and distinct relief in itself,.

To understand this concept of distinct relief of civil death and its relation with section 108, one must know the difference between biological death and civil death or fictional death. 

As per the Philosophical aspect, Death is the phenomenon of the termination of physiological functions of creatures, including humans. it is the termination of life on earth, the separation of the soul from the body. But In the legal sense, "death" is defined under section 2 (1) (b) of The Registration Of Births and Deaths Act,1969 (Act No. 18 of 1969) which reads as under- 

2. Definitions and interpretation.—(1) In this Act, unless the context otherwise requires,—

(b) “death” means the permanent disappearance of all evidence of life at any time after live-birth has taken place;

(d) “live-birth” means the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or show any other evidence of life, and each product of such birth is considered live-born;

The above concept of death in a philosophical as well as in a legal sense is a kind of biological death. One should know that the biological death of a person is totally different from the "civil Death". 

"Civil death" is actually an effect or result of certain events. It is a death which the law presumes for certain specific legal purposes. It is equivalent in its legal consequences to natural death, but it is not biological death. It is basically based on the acts of a person which results in his death in the eyes of law. It is a fictional death in the eyes of Law which may happen due to the missing of a person for more than seven years, or due to entering into a religious order by a Hindu, or in the case of a company ( a legal entity, person in the eyes of law) due to winding up of such company etc... In other words, Civil death is not a natural death of the person. Rather it is a death in the eyes of law.  This Civil death by the effect of the law is basically a declaration of disqualification of a person to possess civil rights under the law. It is a kind of disqualification of someone to enjoy civil rights, due to his own act of escaping from his duties and responsibilities relating to his family,  his profession, business and properties etc. In this sense, the civil death of a person is a kind of right or qualification of his legal heirs to inherit his assets and liabilities. This concept of civil death (or presumptive death) is a very old and well-recognized concept in Hindu Law.  In the case  of Genda Puri v. Chatar Puri [1886] I.A. 100 @ 105, Sital Das v. Sant Ram A.I.R. 1954 SC 606; Mahalingam Thambiren v. La Sri Kasivasi [1974] 2 S.C.R. 74. it has been held that -"One who enters into a religious order severs his connection with the members of his natural family. He is accordingly excluded from inheritance. Entrance to a religious order is tantamount to civil death so as to cause a complete severance of his connection with his relations, as well as with his property. The persons who are excluded on this ground come under three heads, the Vanaprastha or hermit; the Sanyasi or Yati, or ascetic, and the Brahmachari, or perpetual religious student.

Civil Death is the status of a  person deprived of all civil rights, it is equivalent in its legal consequences to natural death. Meaning thereby if a person dies a natural death, his legal heirs are entitled to inherit his assets and properties, they also owe the responsibilities up to the extent of inheritance towards the creditors of the deceased. the same rights and liabilities are inherited by the legal heirs of a person who dies a "civil death" or "fictional death" in the eyes of law. If a person of the Hindu community enters into such religious order which disqualifies him to enjoy civil rights, his heirs can claim his civil death as a matter of right.  Unless the law presumes or declares a "civil death" of such person, his heirs could not be able to inherit such rights or liabilities as to his property. likewise, his or her spouse can not re-marry without dissolution of marital relationship with such person if he is not declared to have died as civil death. 

The same concept is applicable in cases where a person is missing for more than seven years and is not known to be alive or dead. His legal heirs are entitled to get him declared to be dead as civil death. This right to claim for the declaration of civil death is based on the interest theory of rights which are legally protected by providing an equitable relief. The interests of the legal heirs as well as of the creditors of a person, who is missing for more than seven years are badly affected by this event of missing. Here the legal maxim "Ubi jus Ibi re medium"  comes into play. It is an age-old principle that, where there is a right, there is the remedy. 

There are three theories of rights and duties as will theory, interest theory and state protection theory. Will theory accepts every person as sovereign at the micro-level, interest theory regards rights as legally protected interests and obligations and state protection theory assume that all the rights are the concession granted by the state through law. Hence, legal rights can be defined as right in rem and right in personam, personal right and proprietary right, positive right and negative right, principal right and accessories right, perfect right and imperfect right, right in repropria and right in realiena, vested right and contingent right, legal right and equitable right, corporeal right and incorporeal right, antecedent right and remedial right, primary right and secondary right, fundamental right and legal right etc. every law student must have read and understood these kinds of rights and there is no need to explain it in detail. The right to get the relief of the declaration of civil death of the person missing for more than seven years, by his legal heirs, is based on the interest theory of rights.

Hon'ble Allahabad High court has said in the case of Hemant Kishore and ors vs Brij Kishore and Ors. AIR 1998 All 328, that "“the presumption of Civil death or fictional death under Section 108 of the Evidence Act tantamount to physical death in the eye of law for giving the benefits to the heirs/legal representatives and dependents of the deceased.” 

In the case of Sunita Roy Choudhary And Ors. vs Jageshwar Choudhary And Ors. AIR 2006 Pat 127  the court held:

“Section 108 of Evidence Act is in Chapter VII thereof which deals with the burden of proof. It is commonly referred to as a clause dealing with the presumption of civil death..........These provisions do not by themselves declare a person to be alive or dead. That finding is to arrive in a duly constituted suit and upon shifting of the burden of proof in one contingency or the other the Court is to give such a declaration and/or finding.”

To conclude I can say that in cases where a person is missing for more than seven years and is not known to be alive or dead. His legal heirs are entitled to get him declared to be dead as civil death. This right to claim for the declaration of civil death is based on the interest theory of rights which are legally protected by providing an equitable relief of declaration.

2. The Second argument against the maintainability of a civil suit for declaration of civil death is, that the death of any person cannot be claimed as a matter of right. 

But in my view, only those people place this argument who actually find it difficult to understand either the basic concept of civil death and biological or natural death; or they are unaware of the jurisprudence of theories of rights. As I have already discussed in detail that how the relief of the declaration of civil death is a right of the legal heirs and dependents of that person to inherit the assets and liabilities of such missing persons, I would like to mention here the judgement of Hon'ble Supreme court In the case of State of Bombay vs. Pandurang Vinayak AIR 1953 SC 244, Hon'ble Supreme Court, In this case, has held that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. the same view was adopted in the case of Harish Tandon vs. ADM,(1995) 1 SCC 537. 

By Placing reliance on these Judgments of The supreme court, Hon'ble Allahabad High court has said in the case of District Judge Hardoi vs Saurabh Kumar (SPECIAL APPEAL No. - 767 of 2012 Order Date:- 21.7.2014,) that "Provisions contained in Section 107 and 108 read with Section 56 of the Indian Evidence Act dealt with the public interest and for the welfare of people. Any presumption is drawn, which go against the spirit of Section 107 and 108 of the Indian Evidence Act, shall not be correct. Ordinarily, in case it is found that a person is missing for more than seven years, then the statutory provisions under Sections 107 and 108 should be given effect. The right flowing from statutory provisions may not be taken away on a presumption based on the unfounded ground."

   

It is expedient to mention here that for the registration of the fact of the death of missing persons in natural calamities affected areas of the state of Uttrakhand and Jammu & Kashmir the complete Procedure was provided by the Circulars dated  16-08-2013 & 12-09-2014 issued from the Office of the Registrar General & Census Commissioner, India. But no such procedure was provided for the rest of the country. A Clarification from the OFFICE OF THE REGISTRAR GENERAL, INDIA, V.S. Division, West Block-1, R.K. Puram, New Delhi-110066. ( bearing No. 8/4/2011- VS (CRS) GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS) regarding the determination of place and date of death of a missing person was issued on 29 December 2011 addressing to All The Chief Registrar of Births and Deaths in All States/UTS. It is important to mention here the contents of this clarification letter which are as under:-

"1. Please refer to this office letter no. 1/12/87 - VS (Cord - HPJ dated 07.09.2000 which was issued in respect of determination of place and date of death of at missing person, wherein, It was specified that under Section 108 of Indian Evidence Act 1872, a person who is unheard for more than seven years is presumed to be dead and said section does not speak about the date and place of death, the date and place of death of a missing person has to be determined by the competent Court / authority on the basis of oral and documentary evidence produced before the Court. However, now a days, it has came to the notice of this office through various State Governments that the respective Courts are not mentioning the date and place of death of an missing person in its order which create problem in registration of death of the missing person.

2. In view of the above, this issue has been referred to the Union Ministry of Law & justice for their advice. The Ministry has adviced that -

The earliest date to which the death can be presumed can only be the date when the suit or claim of that right is filed as has been held in the matter of Jeshankar vs Bai Divali, reported in (1920) 22 Bom Lr 771. The issue has been made more clear on the point of date of death in the matter reported in AIR 1945 Madras 440 Bhagat vs. LIC. Madras wherein it was observed that in the absence of probable motive of foul play or accident one has to speculate as to the cause of his disappearance, and it could not be presumed that he was dead, on the date of his disappearance and in the absence of proof that he was alive the only conclusion possible is that he was dead at the time the question arose (date of plaint) owing to the failure of the defendant to prove that he was alive.

.In view of the foregoing when the provisions of Section 13(3) of the Act are specific that registration will be on the basis of court order, an entry be made in the relevant record on the basis of court order only and as has heen held by the courts the date of death may be mentioned on which plaintiff approached to the Court.

3. In view of the above, you are therefore requested to circulate the contents of this letter to all the district and local level registration authorities to enable them to register the death of a missing person. This office may also be apprised about the action taken in this regard along with the copy of instructions issued to the registration functionaries."

My intention to reproduce the above clarification letter is Only to show that the declaration of civil death by presumption under Section 108 Evidence Act, by the competent court, is now a  well recognized and accepted mode for the registration of death of missing persons. Proof of death is important for relieving an individual from legal, social and financial obligations. It will be essential for his family members to enjoy the inheritance of property and closing the statutory obligations. A death certificate is crucial in proving the “circumstances of death” and also in availing the benefits of Life Insurance and other financial schemes. The death certificate is mandatory for availing benefits like dying in harness, family pension and for enforcing rights and obligations related to the properties of the deceased. 

 

To conclude on these points, I would like to submit that the declaration of a civil death by the effect of a statutory Fiction provided under section 108 of the Indian Evidence Act, is now a well-recognized relief that could be claimed by the legal heirs or dependents of such missing person and the court should not reject such suit on the ground that death of a person can not be claimed as a right or on the ground that the provision of section 108 is only a rule of evidence. The court should adopt a pragmatic approach because, in such a suit, the plaintiff asks for a declaration of a statutory fiction that is "civil death" and not for natural death. Civil death is equivalent in its legal consequences to natural death, it is a death only in the eyes of law which is a fictional death, not a natural death.

3. The third argument against maintainability is that in a suit for declaration of civil death the plaintiff seeks the declaration of some other person not of his own and under section 34 of specific Act plaintiff could seek a declaration of only his legal status. 

        To answer this argument it would be necessary to reproduce Section 34 of the Specific Relief Act, which reads as under-

Section 34. Discretion of Court as to Declaration of Status or Right:

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of a title, omits to do so.

Explanation: A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence and for whom if, in existence, he would be a trustee. "

 A bare reading of Section 34 reveals that it talks about the entitlement of legal character, this entitlement to such legal character can not be narrowed and limited to the legal character of the plaintiff only. A plaintiff who seeks the declaration of civil death of his relative is implicitly seeking his own status to be made clear by declaring the status of such civil death of his such relative. section 34 does not strictly limit it to the legal character of the plaintiff only.

In the case of Food Corporation Of India, vs Mahabir Prasad Bhartiya AIR 1988 All 160, Hon’ble Allahabad high court has held in para 15 as under- 

15……………... Under the present section the words 'legal character' is not a common phrase in jurisprudence and it is seldom used in statutes except under Section 42 of the old Act. The words 'legal character' indicate the legal status. A declaration that the defendant is not the son of the plaintiff or his adopted son, or the plaintiff is the legitimate child of the deceased person or that he is the son of A and not the son of B, or that a lady plaintiff either is or is not the wife of the defendant and similar declarations as to whether the plaintiff is a member of an agricultural tribe and as to whether the plaintiff is or is not a member of any specified class, would be covered within the meaning of the declaration of 'legal character. 

 The Hon'ble court in the above case has given an inclusive list of legal characters. A declaration that the defendant is not the son of the plaintiff or his adopted son is actually a declaration of the legal character of the defendant and not of the plaintiff, but the Hon'ble court has recognized it as a legal character which may be sought to be declared under section 34 of specific relief Act.

There are two Full Bench decisions, one of the Calcutta High Court in Noor Jehan Begum v. Eugene Tiscenko, A. I. R. (19) 1942 Cal. 325, and the other of the Lahore High Court in Abdul Karim v. Mt. Sarraya Begam, A.I.R. (38) 1945 Lah 266, in which the Calcutta case was noticed with approval In the former the meaning of the expression 'legal character' received the attention of the Hon’ble Judges, and it was held that the words were wide enough to include the status of a person. In the latter also the same meaning was assigned to those words. It was pertinently remarked that :

"Where the relationship does carry with it certain legal consequences, even though it may not affect or involve any right to property, a suit for a declaration as to the existence of such relationship is competent."

In the case of Smt. Mangala W/O. Kushappa Kurbet vs The Government Of Karnataka decided on  30 September 2020 (WRIT PETITION NOs.110262-110263/2017 THE HIGH COURT OF KARNATAKA DHARWAD BENCH) it was observed by the court that-

"In terms of Section 34 of the Specific Relief Act, a suit can be filed for declaration that a person is stated to suffer civil death, in the event of the said person not having been heard for a period of seven years, by proving the requirement under Section 108 of the Indian Evidence Act this essentially would imply that it is only after seven years that a person can be presumed to be dead or declared to be dead. This declaration can only be done by the Civil Court of appropriate jurisdiction."

4.  Now I would like to answer the fourth argument that there is no one in such a case to deny such legal character and in such a situation a suit under section  34 of the Specific Relief Act is not maintainable.

The answer of this argument is very simple, that the authority, who asks the plaintiff to produce a declaratory decree of a civil court declaring civil death of the person missing, for enforcing the rights on account of the Presumed death, can always be deemed to be the person denying or interested to deny such civil death. 

    It is important to mention here that once a person is missing and a report in this regard has been lodged, the state is duty-bound to search and investigate such a missing person. The State is fully responsible to search the corpus of that missing person if he is alive and his body in case of his death. it is the state who is responsible to provide a death certificate to the dependents of the deceased. If in a case any authority of the state responsible for the registration of the death, asks for a decree of a civil court competent to declare the civil death of a missing person, such authority could be said to have been actually denying to presume that legal fiction of civil death. In this sense, the welfare state is a necessary party to a suit for declaration of civil death.

In the case of Sou. Swati vs Shri. Abhay (Second Appeal No.18/2016) decided on 26 February 2016 the Hon'ble High Court of Bombay has said that “ Nevertheless, in my opinion, the appellants should have made the State of Maharashtra, through Collector, Nagpur as party-defendant to the Suit, since in such an eventuality, it is the State, which cares for the interest of its people and, therefore, the Court may take the assistance of the State, for finding out the truth. This Court, therefore, allowed the appellants to add Collector as a defendant in this Second Appeal, which is in continuation of the Suit and, therefore, an effective decree can always be passed.”

To conclude, I may say that in every eventuality there is always the State denying or interested to deny the fact of death and it will be a necessary party in a suit for the declaration of civil death.

5. The fifth point I would like to discuss here,  that  Some learned officers are of the opinion that if the plaintiff seeks a declaration of civil death as an ancillary relief along with the main relief only then such suit would be maintainable. a suit for mere declaration of civil death is not maintainable.

I would like to submit here that this opinion may be based either on the misconception of substantial rights and rule of evidence, or it may be based on the proviso to section 34 of the Specific Relief Act.

In my opinion, It always depends on the facts and circumstances of each case, the nature of such other relief and the jurisdiction of the court to grant such relief. To understand it in its complete sense we can have the reference of law on the application of proviso to section 34 of the Specific Relief Act.   

In the case of (Mahant Indra Narain Das vs Mahant Ganga Ram Das And Anr. AIR 1955 All 683). The Hon'ble court held that- By reading the last clause of the main section 34 where it is stated that the plaintiff need not ask for any further relief and the proviso together, it appears that the proviso refers to those reliefs which are not such that the plaintiff may or may not ask for it, but one which the plaintiff must seek in order to get actual and substantial relief suitable for him -- a relief which the plaintiff will have to seek by means of some subsequent suit or application in order that he may make the declaratory relief fruitful to himself.

In the case of, Vinay Krishna v. Keshav Chandra, 1993 Supp. (3) SCC 129, it was held that, if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable. 

In the case of, Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148, the Supreme Court of India held that "a suit seeking merely declaratory of the title of ownership, albeit a property without seeking possession, when the plaintiff is not in possession of the property is not maintainable. "

What I mean to say here is that as a general Rule the plaintiff need not seek any further relief. It always depends on the fact and circumstances of each case whether the plaintiff must seek any further relief or not. To avoid multiplicity of suits the plaintiff must seek all the reliefs which he is able to seek and a civil court is competent enough to grant. A relief which the plaintiff will have to seek by means of any subsequent suit or application in the same court, to make the declaratory relief fruitful to himself, he must seek such relief in the same suit for declaration of civil death. But if in a case where such civil court is not competent to grant such other relief due to lack of jurisdiction, a suit for a declaration of "civil death" can not and should not be rejected on the ground that a suit for declaration of civil death simpliciter is not maintainable.   

 

It is expedient to mention here the findings of the Hon'ble Allahabad High Court in the case of Smt. Alka Sharma vs Union Of India And Others (decided on 17 January 2020, the SECOND APPEAL No. - 192 of 2007)  

it was observed by the court in para 7

“......Further, technicality has been inserted by learned Civil Judge that in the plaint not only a declaration for civil death should have been sought, but she should have sought further declaration claiming rights as have been mentioned in para-6 of the plaint and since such declaration has not been sought, therefore, the plaintiff is not entitled to any relief.”

the court observed in para 18

“It has been arbitrarily held by the learned Civil Judge (Senior Division) that the plaintiff was obliged to seek any other declaration in regard to claims of service benefits in addition to the declaration of civil death.”

In the above case, the declaration of civil death was sought by the plaintiff so that she can produce the same before the appropriate authority for compassionate appointment in place of her husband and also for the payment of provident fund, employees welfare scheme and other service benefits along with pension be extended in favour of the plaintiff.

Here I found my duty to mention that By its 9th Amendment Rule, 2011( No. 6/XII-1973-Personnel-2-2011 T.C. - IV dated Lucknow, December 22, 2011), The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, has been amended and a sub-clause (iv) inserted to clause C of Rule 2 in The above Rules. By this insertion, the family members of missing government employees have also been included for the benefit of these Rules but the condition is that such missing person must have been declared dead by some competent Court.  

    Now say for example if in a case Mr. "A" a Government employee is missing for more than seven years and does not leave any other property for his son "B", except his residential house and there is no dispute regarding his son's title to his residential house as no one is denying or interested to deny B's title on such house. "B" finds himself eligible for compassionate appointment in place of his father named A," and he moves an application before the appropriate authority for such appointment. "B" institutes a suit for declaration of civil death of his father "A". will it be appropriate to reject his suit on the ground that a suit for mere declaration of civil death is not maintainable? if so it would be an injustice done by the court itself, and the very purpose to establish Civil Courts in the State would be frustrated.  

The next situation may be that in the above example, there is agricultural land left by Mr. "A" and his son "B" Moves an application before the revenue authority for mutation or declaration of title on such land on the basis of a presumption under section 108 of Evidence Act, and the Revenue court denies to presume and asks to produce a decree of civil court regarding the status of his father. Can a civil court deny to entertain such a suit by saying that a suit for mere declaration of civil death is not maintainable? if so it would again be an injustice done to the plaintiff.

Here I would like to mention the case of Renu Chauhan vs the State Of U.P. And 3 Others decided on 3 January 2020 (WRIT - C No. - 43102 of 2019) where the grievance of the petitioner was that in the revenue records, the name of one Surendra Pratap Singh was entered. His whereabouts had not been heard of for many many years and, therefore, the petitioner had moved this petition saying that the presumption of civil death of Surendra Pratap Singh is necessary to be raised and accepted. On the basis of such presumption, the revenue entries are liable to be modified. Hon'ble Allahabad High Court has held that "In my considered opinion, in case the petitioner feels that Surendra Pratap Singh is liable to be declared to have died a civil death, she may seek a declaration in this regard from the Court of competent jurisdiction. Only thereafter would the revenue entry be liable to be corrected/modified."

 Now I would like to conclude that where the concerned civil court is not competent to give any further relief other than a mere declaration of civil death, due to its lack of jurisdiction on the subject matter, the plaintiff need not seek such further relief and he or she can institute a suit for a mere declaration of civil death.

Declaration of Civil Death  and The Plenary Jurisdiction  of Civil Court

The remedy of declaration of civil death under the provisions contained in Section 107 and 108 of the Indian Evidence Act is related to the public interest and for the welfare of people.  The view that section 34 of the Specific Relief Act, 1963 is exhaustive of all kinds of declaratory reliefs and that a declaratory suit can be maintained within the scope and ambit of this provision alone has long been rejected.

Supreme Court in Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy 1967 AIR 436, 1966 SCR 270 observed, "In our opinion Section 42 of the Specific Relief Act  is not exhaustive of the cases in which a declaratory decree may be made and the courts have the power to grant such a decree independently of the requirements of the section." Supreme Court further observed that declaratory reliefs falling outside the Specific Relief Act may fall under the general provisions of the Civil Procedure Code, like section 9 of Order VII Rule 7. This was reiterated in Supreme General Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath Singhji Deo 1975 AIR 1810, 1976 SCR (1) 237, wherein it was observed, "The result is that Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42."

In Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126 para 15 it has been held as follows:

 ―There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one‘s peril, bring a suit of one‘s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit.

  The above portion has been quoted with approval in Abdul Gafur v. State of Uttrakhand AIR 2009 SC 413 (para 14). The same thing has been held in Shiv Shakti Co-operative Housing Society v. S. Developers AIR 2003 SC 2434 (para 17).

 To Conclude I would like to submit that there is no statutory bar to institute a civil suit for a mere declaration of civil death. a declaratory decree may be made and the courts have the power to grant such a decree independently of the requirements of section 34 of the specific relief act. the relief for declaration of civil death is actually a separate,  distinct and extraordinary relief in an extraordinary situation of the plaintiff. A civil suit for declaration of civil death is maintainable before the court of competent jurisdiction. The courts should always adopt a pragmatic approach in these cases. 

    It is often argued that what will happen in case after such declaration that person comes back being alive? But this question was well answered In the case of District Judge Hardoi vs Saurabh Kumar SPECIAL APPEAL No. - 767 of 2012 Order Date:- 21.7.2014,  Hon’ble Allahabad High Court has held that ordinarily, in case it is found that a person is missing for more than seven years, then the statutory provisions under Sections 107 and 108 should be given effect. The right flowing from statutory provisions may not be taken away on a presumption based on the unfounded ground. What will happen in due course of time in case the statutory provision is implemented affects adversely should be looked into by the Legislature and not by the Courts.

What are the Essential Considerations to be looked into by the Court While deciding a case for declaration of Civil Death?

 Now let us focus on the essentials of such suit, which are as follows:-                                          

1: Cause of Action 

There is no definition of "cause of action" in the Civil Procedure Code, but it is the fundamental pivot around which many of the provisions of the Civil Procedure Code revolve. It is the basis for the maintainability of the suit. "cause of action" means the bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit. Or to put it differently, it refers "to the media upon which the court arrived at a conclusion in his favour." To define it is comparatively easier but to apply it to the facts of each case is more difficult. It includes facts and circumstances that forced the person to prefer a civil suit and to approach the court. 

A cause of action means every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts that are taken with the law applicable to them that gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. (A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem 1989 SCR (2) 1.

In Rajasthan High Court Advocates Association V. Union of India & Ors, 2001 (2) SCC 294, the Hon'ble Supreme Court observed that "The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court."

Only the fact of "missing a person" alone will not constitute a cause of action. In every suit for declaration of statutory fiction of civil death, the plaintiff will have to mention all those facts and circumstances that forced him to prefer a civil suit and to approach the court. for example, if there is any right of the plaintiff, the enforcement of which depends only on such declaration of civil death, the plaintiff must state of such rights or liability in his plaint. In other words, In a suit for declaration of civil death, the plaintiff must state the purpose for which such declaratory decree is required, he must state the legal right whose enforcement is dependent on such declaratory relief. If such a legal right can be enforced by the decree of a civil court then the plaintiff should ask relief for such decree also along with the declaration of civil death.

2.: The Expiry Of Seven Years

The presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, AIR 2004 SC 2070, the Supreme Court held that the presumption as to death by reference to Section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. 

Allahabad High Court in the case of  Vivek Kumar Verma vs Uttar Pradesh Rajya Vidyut … decided on 4 December 2019 (WRIT - A No. - 19124 of 2019) held that:-

"The presumption of death under Section 108 would be available if a person has not been seen for a period of 07 years by those who would have naturally heard of him if he had been alive. For presumption of death to arise under Section 108 of the Act of 1872 two facts must be entertained. Firstly, it has to be ascertained as to what is the last date when such a person is seen last. Secondly, it must be established that a period of 07 years has expired since such a person is seen last by those who would have naturally heard of him."

Therefore, the expiry of the full period of seven years is essential to raise the presumption under Section 108 of the Evidence Act. the plaintiff must state in his plaint the circumstances and time or date/Month, year of missing of the deceased for enabling the court to calculate the expiry of seven years for the purpose of presumption under section 108 of the Evidence act. In another word the expiry of seven years is the fact which must be proved to get such relief.

3.: Persons Who Would Naturally Have Heard Of Him If He Had Been Alive.

the plaintiff must state about the persons best known to him who would naturally have heard of the deceased if he had been alive. In the ordinary course, all the members of the family are presumed to be such persons. the residents near the place of residence of the deceased before he went missing, his friends or colleagues at his workplace could be the persons who would naturally have heard of him if he had been alive. the plaintiff should produce such persons as witnesses to prove such fact before the court. A copy of the "Kutumb Register" is also an important document to ascertain the family members of the deceased.

It would also be of good help if a publication is issued by the court inviting objection from the general public if any in this regard.

 

The Examples Of The Operative Decree Of Civil Death In various Judgements:-

following decree passed by the Hon'ble courts could be taken as an example of the language and format of the operative part of the decree for declaration of civil death:-

1. "it is declared that the husband of the plaintiff namely, Sri Govind Prasad Sharma son of Late Devendra Prasad Sharma who was employed in the Office of D.R.M., Jhansi Division, Jhansi is dead and his death is civil death as he is missing from 09.02.1993 is not heard of till the date of filing of the application in 2002. It is directed that the competent authority issue a death certificate on the basis of the declaration issued in favour of the appellant."

                                                                   

2. Suit of the plaintiff is decreed in the following terms: (a) A decree of declaration that Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of the  - plaintiff Ms Veerbala Mathur) died a civil death is hereby passed. The concerned department/EDMC shall issue a Death Certificate qua death of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of - plaintiff Ms Veerbala Mathur). His date of death shall be taken to be the date of this judgment, that is, 16.04.2021. (b) A mandatory injunction is hereby issued to DDA to complete and process the freehold conversion of C­40, East End Apartments, Mayur Vihar, Delhi - 96 as per the applicable rules and regulations, and (c) Parties shall bear their own costs. A decree sheet be drawn up.

***********

Rajneesh Mohan Verma

Dy Director JTRI Lucknow

Disclaimer: This article is based on the research and personal Understanding of the Author. It is only for academic purposes and readers are not expected to follow or rely on the opinion of the author. they can form their own opinion. It is also made clear that this web page belongs to the author only and it has nothing to do with any organisation or Institution or working place of the author.

Rajneesh Mohan Verma

Cognizance and summoning in a complaint case in Bhartiya Nagrik Suraksha Sanhita 2023

Cognizance and summoning in a complaint case

In

Bhartiya Nagrik Suraksha Sanhita

Due to the enactment of Bhartiya Nagrik Suraksha Sanhita 2023 and the insertion of the proviso under section 223, It is mandatory to hear the proposed accused before taking cognizance. Due to this Proviso, the following points are a matter of discussion amongst the judicial fraternity. 

1. At what stage the proposed accused should be called upon for a hearing on the point of cognizance?

2. What would be the right course for registering the complaint, when the application under section 173(4) of BNSS is disposed of in a manner that it should be treated as a complaint, and the magistrate decides to proceed as a complaint case?

In this short article, I have tried to put my opinion before the learned readers for discussions and appreciation. It is just my personal understanding. Readers are expected to form their own opinion.  

To understand the stage when the proposed accused should be called upon for a hearing in a complaint case, It is important to understand the stage when a magistrate is said to have taken cognizance of the complaint? Here it is also important to understand that taking cognizance and summoning the accused are two different stages. The cognizance is taken of the offence and not the offender. Section 190 of Cr.P.C. and section 210 of BNSS lays down how cognizance of offences will be taken by a Magistrate. Section 210 provides as follows-

210. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— 

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence; 

(b) upon a police report (submitted in any mode including electronic mode) of such facts; 

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

There are two different parts to a complaint and a police report placed before the magistrate. One is the facts constituting the offence and the other is the offender. In other words, the court has to see as to whether any offence has been committed, and if committed, by whom?  This is the reason the legislature has mandated u/s.193(3)(i)(d)  of BNSS that the police report shall state - whether any offence appears to have been committed and, if so, by whom? 

When the court applies its mind to the complaint or police report and finds that the offence is committed and the matter requires enquiry or trial then, it is said that the court has taken cognizance of the offence. Thereafter the court is bound to find out the sufficient grounds to summon the accused against whom the complaint or police report was filed. Applying the judicial minds to find sufficient grounds for summoning the accused for trial is called the enquiry. 

Here the difference, between cognizance and summoning on a police report and cognizance and summoning on a complaint, comes into play. In a complaint case, the inquiry involves examination of the complainant and his witnesses if any and perusing the materials placed in support of the complaint. In some cases, a post cognizance investigation in the form of enquiry is ordered by the Court. In the matter of the police report, the court has to apply its minds to the police report and its all enclosures to find out the commission of an offence and, at the same time, grounds for summoning the accused. But in a complaint case, there is a long gap between cognizance and summoning of the accused. In a complaint case, the court has to examine the complainant and his/her witnesses and in some cases, a post-cognizance investigation is ordered by the court.  If the court after examining the complainant and its witnesses, if any and, applying its minds on the materials placed before it, does not find sufficient grounds, the court can deny to summon the proposed accused and can dismiss the complaint. But this option is not available in the matters instituted on the police report. The reason behind is simple: a police report is filed after detailed investigation and if the court is not satisfied with the report it can take other recourse, but  once the court has taken cognizance of the police report it has no power to dismiss or reject the same. But in a complaint case the magistrate is empowered by the code to dismiss and reject the complaint after cognizance also.

Here I would like to refer to the case of CREF Finance Ltd vs Shree Shanthi Homes Pvt. Ltd. & Anr, 2005 Cr.L.J.4525 SC. In this case, Hon‘ble Supreme Court held-

“The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate pursues the complaint intending to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out.”

In the case of the State of Karnataka and Another Vs. Pastor P. Raju (2006) 6 SCC 728 The Court held that “The heading of Chapter XIV of Code of Criminal Procedure is "Conditions Requisite For Initiation Of Proceedings".The very first Section in the said Chapter, viz., Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is - 'judicial hearing of a matter. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earlier decision of this Court on the point is R.R. Chari v. State of U.P. AIR 1951 SC 207, wherein it was held:-

"Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence." It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of a process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.”

The Hon‘ble Supreme Court has held in the case of Madhao v. the State of Maharashtra, 2013 (82) ACC 378 (SC) that - "When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself”

In the case of Irshad Khan and Others vs. the State of U.P. and another, 2014 (84) A.C.C. 95 (All.) Hon'ble Allahabad High Court has held as under-

“In a complaint case on receipt of a complaint and on its perusal, if the Magistrate is satisfied that the complaint discloses a commission of offence he may proceed further.It must be held to have taken cognizance of an offence under Section 190 (1) (a) of the Code. The Magistrate is not bound to take cognizance if he is of the opinion that the complaint did not disclose the commission of any offence and in such a situation the Magistrate shall dismiss the complaint at the threshold. However, once he takes cognizance he must examine upon oath the complainant and his witnesses under Section 200 of the Code.”

Now the law is settled on the point that When the magistrate has applied his mind to the offence to proceed in a particular way, i.e. towards inquiry under Section 200,202 Cr.P.C. or U/S. 223 & 224 of BNSS in the complaint case, it can be said that the Magistrate has taken cognizance of the offence under S.210(1) (a) of BNSS. It is also settled that the magistrate is not bound to take cognizance. On receiving a complaint the magistrate has the following options:-

1. He can take cognizance of the offence and proceed towards enquiry if the complaint discloses a commission of offence; or

2. If the complaint did not disclose the commission of any offence, in such a situation the Magistrate shall dismiss the complaint at the threshold..

3. In a cognizable offence, Instead of taking cognizance, he can direct the police u/s.175 (3) BNSS to register the case and investigate.

 

Now the question arises at what stage the proposed accused should be called upon for a hearing as provided in the proviso to section 223(1) of BNSS?

Section 223. (1)  of BNSS provides that “A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: 

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: 

The phrase “ A magistrate having jurisdiction while  taking cognizance of an offence on complaint shall, examine upon oath the complainant and witnesses present,” used by the legislature clearly indicates that proceeding towards examining the complainant would show the intention of the court that it is taking cognizance of the offence. The proviso to section 223 prohibits the cognizance without giving the accused an opportunity of being heard. This section clearly indicates that the accused must be provided an opportunity of hearing before examination of the complainant and its witnesses. 

In my opinion, If on the receiving of complaint and after perusing it, if the magistrate is not dismissing the complaint at the initial stage and he is of the opinion that the complaint disclose offence, the magistrate should proceed to hear the proposed accused and complainant and pass a detailed order for proceeding towards examination of complainant. After hearing the proposed accused the magistrate can dismiss the complaint at the initial stage itself if he finds the complaint frivolous . In case he decides to inquire into the matter, the case may be fixed for examination of the complainant. 

The magistrate, Instead of proceeding further, can exercise the power u/s.175 (3) BNSS and transmit the complaint to concerned police to register FIR and investigate. and in such a situation the magistrate is not required to hear the proposed accused because he is not taking cognizance.

Here, I would like to refer to the case of Madhao v. State of Maharashtra, 2013 (82) ACC 378 (SC) . In this case Hon’ble Apex Court held that when a magistrate receives a complaint, he is not bound to take cognizance. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate,... he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

Now the question arises as to whether such a complaint be first registered as a miscellaneous case? 

The answer is No. Registering the complaint is just ministerial work. registering of complaint itself would not amount to cognizance. It is only when the Magistrate is satisfied that the complaint discloses a commission of the offence and he should proceed to examine the complainant u/s.223 of BNSS for ascertaining the truthfulness of the complaint, the magistrate is said to have taken cognizance. 

Now, in BNSS the complaint could be fixed for hearing the complainant and the proposed accused on the point to proceed further or on the point of cognizance. If upon hearing the parties the magistrate decides to proceed further he has to pass a detailed order and fix a date for examining the complainant.  Registering a complaint itself is not a cognizance. 

Readers may take the reference of the case of M/S Supreme Bhiwandi Wada Manor Infrastructure Private Limited Vs. The State Of Maharashtra (2021) 7 JT 238 : (2021) 8 SCALE 534.  In this case, The appellant filed a complaint with the Powai Police Station, Mumbai following the discovery of an alleged fraud. Thereafter,  complainant Mr Uday Joshi has filed a complaint bearing Complaint Case No.506/SW/2015 before the Court of the Magistrate at Andheri in Mumbai.  On 11 May 2016, the Metropolitan Magistrate at the 66th Court, Andheri, Mumbai passed an order under Section 156(3) of the CrPC directing the police to investigate the complaint. Following the order of the Magistrate, a First Information Report FIR No 2 of 2016 was registered on 24 May 2016 with the Powai Police Station for alleged offences under Sections 418,419,420, 405, 467,468, 471, 474, 120 B read with Section 34 of the Indian Penal Code. Two of the accused named in the FIR moved the Sessions Court for the grant of anticipatory bail. By its orders dated 13 February 2017 and 16 February 2017, the 6 Sessions Court granted anticipatory bail to A2 and A3. Applications for anticipatory bail were also moved before the Bombay High Court by A1 and A4. On 24 January 2017, the High Court granted interim protection against arrest to A1. The High Court granted interim protection from arrest to A4 on 16 February 2017. The grant of anticipatory bail to A2 and A3 also became a subject matter of a similar challenge by the complainant before the High Court. Eventually, by its order dated 18 December 2017, the High Court granted anticipatory bail to A1 and A4. 

The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by an affidavit dated 6 February 2016. However, the High Court held that the mandate of Section 200 of the CrPC of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court held that this raises serious doubt about the validity of the order which has been passed under Section 156(3). 

Hon’ble Supreme Court held that, There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant. Secondly, the position in law as set out in the order of the Single Judge does not accord with the principles which have been consistently enunciated in the decisions of this Court specifically in the context of Chapter XV of the CrPC.   This Court in Suresh Chand Jain v. State of MP (2001) 2 SCC 628 held that- “The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order an investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. To enable the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code.” The principle enunciated in the above decision has been followed in several decisions of this Court. In Dilawar Singh v. State of Delhi, the decision in Suresh Chand Jain (supra) was cited with approval. In Tilak Nagar Industries Limited v. State of Andhra Pradesh, a two-judge Bench of this Court held that: ―12…power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of the cognizable offence. In Anju Chaudhary v. State of Uttar Pradesh (2013) 6 SCC 384 The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202 and observed: ―40. Still, another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where a Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different classes. This view was also taken by a Bench of this Court in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] . The distinction between these two powers had also been finally stated in the judgement of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652] wherein the Court stated that : (SCC p. 218, para 23) ―23. … to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.

The High Court has evidently not been apprised of the above judgments for, if it was, it would not have proceeded to formulate a principle which is contrary to the line of precedent of this Court. 

In consequence, it disposed of the petitions questioning the grant of anticipatory bail by the Sessions Court to A3 and A4. 

The above Judgement of the Hon'ble Apex court clearly approves that registering the complaint case will not create any hurdle in deferring from taking cognizance of the complaint. There is no need to register the complaint as a miscellaneous case. Following different courses are available regarding filling and registration of the complaint -

1-on receiving the complaint a filing number is allotted. The registration of the same may be deferred and the regular complaint case can be registered only after hearing the accused and complainant on the point of admission and proceeding further.

2. On receiving the complaint it can be registered as a regular criminal case but the cognizance may be deferred and the date should be fixed for hearing the proposed accused and complainant. 

Whether the second complaint is maintainable if the first complaint has been dismissed in the absence of the complainant or otherwise under section 203 Cr.P.C./ Now section 226 BNSS.?

    As per provisions of section 226 of the Code, the complaint cannot be dismissed in the absence of the complainant.  there is no provision to dismiss the complaint in the absence of the complainant at this stage. If the complaint has been dismissed  for non presence of the complainant, by the court or a Magistrate, the second complaint is maintainable on the same facts. However, when a Magistrate conducts an inquiry under Section 224 of the Code and dismisses the complaint on merits u/s 226, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable.

The Hon‘ble Apex Court has held in the case of Pramoth Nath Talukdar vs. Saroj Ranjan Sonkar, AIR, 1962 SC 876 that an order of dismissal under section 203 of the Code of Criminal Procedure, 1973 in the absence of the complainant is no bar to the entertainment of the second complaint on the same facts, but if it is dismissed on merit it will be entertained only in exceptional circumstances. The Court held that:

“Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the compCognizance and summoning in a complaint case as per Bhartiya Nagrik Suraksha Sanhita

Due to enactment of Bhartiya Nagrik Suraksha Sanhita 2023 and insertion of the proviso under section 223, It is mandatory to hear the proposed accused before taking cognizance. Due to this Proviso, following points are the matter of discussions amongst the judicial fraternity. 

1. At what stage the proposed accused should be called upon for hearing on the point of cognizance?

2. What would be the right course for registering the complaint, when the application under section 173(4) of BNSS is disposed of in a manner that it should be treated as complaint, and the magistrate decides to proceed as a complaint case?

In this short Article, I have tried to put my opinion before the learned readers for discussions and appreciation . It is just my personal understanding. Readers are expected to form their own opinion.  

To understand the stage when the proposed accused should be called upon for hearing in a complaint case, It is important to understand the stage, when a magistrate is said to have taken cognizance of the complaint? Here it is also important to understand that taking cognizance and summoning of the accused are two different stages. The cognizance is taken of the offence and not the offender. Section 190 of Cr.P.C. and section 210 of BNSS lays down how cognizance of offences will be taken by a Magistrate. Section 210 provides as follows-

210. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— 

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence; 

(b) upon a police report (submitted in any mode including electronic mode) of such facts; 

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

There are two different parts in a complaint and a police report placed before the magistrate. One is the facts constituting the offence and the other is the offender. In other words the court has to see as to whether any offence has been committed, and if committed, by whom?  This is the reason the legislature has mandated u/s.193(3)(i)(d)  of BNSS that the police report shall state - whether any offence appears to have been committed and, if so, by whom? 

When the court applies its mind on the complaint or police report and finds that the offence is committed and the matter requires enquiry or trial then, it is said that the court has taken cognizance of the offence . Thereafter the court is bound to find out the sufficient grounds to summon the accused against whom the complaint or police report was filed. Applying the judicial minds to find out sufficient grounds for summoning the accused for trial is called the enquiry. 

Here the difference, between cognizance and summoning on a police report and cognizance and summoning on complaint, comes into play. In a complaint case the inquiry involves examination of the complainant and his witnesses if any and perusing the materials placed in support of the complaint. In some cases a post cognizance investigation in the form of enquiry is ordered by the Court. In the matter of the police report, the court has to apply its minds to the police report and its all enclosures to find out the commission of an offence and, at the same time, grounds for summoning the accused. But in a complaint case, there is a long gap between cognizance and summoning of the accused. In a complaint case, the court has to examine the complainant and his/her witnesses and in some cases, a post-cognizance investigation is ordered by the court.  If the court after examining the complainant and its witnesses, if any and, applying its minds on the materials placed before it, does not find sufficient grounds, the court can deny to summon the proposed accused and can dismiss the complaint. But this option is not available in the matters instituted on the police report. The reason behind is simple: a police report is filed after detailed investigation and if the court is not satisfied with the report it can take other recourse, but  once the court has taken cognizance of the police report it has no power to dismiss or reject the same. But in a complaint case the magistrate is empowered by the code to dismiss and reject the complaint after cognizance also.

Here I would like to refer to the case of CREF Finance Ltd vs Shree Shanthi Homes Pvt. Ltd. & Anr, 2005 Cr.L.J.4525 SC. In this case, Hon‘ble Supreme Court held-

“The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate pursues the complaint intending to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out.”

In the case of the State of Karnataka and Another Vs. Pastor P. Raju (2006) 6 SCC 728 The Court held that “The heading of Chapter XIV of Code of Criminal Procedure is "Conditions Requisite For Initiation Of Proceedings".The very first Section in the said Chapter, viz., Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is - 'judicial hearing of a matter. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earlier decision of this Court on the point is R.R. Chari v. State of U.P. AIR 1951 SC 207, wherein it was held:-

"Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence." It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of a process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.”

The Hon‘ble Supreme Court has held in the case of Madhao v. the State of Maharashtra, 2013 (82) ACC 378 (SC) that - "When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself”

In the case of Irshad Khan and Others vs. the State of U.P. and another, 2014 (84) A.C.C. 95 (All.) Hon'ble Allahabad High Court has held as under-

“In a complaint case on receipt of a complaint and on its perusal, if the Magistrate is satisfied that the complaint discloses a commission of offence he may proceed further.It must be held to have taken cognizance of an offence under Section 190 (1) (a) of the Code. The Magistrate is not bound to take cognizance if he is of the opinion that the complaint did not disclose the commission of any offence and in such a situation the Magistrate shall dismiss the complaint at the threshold. However, once he takes cognizance he must examine upon oath the complainant and his witnesses under Section 200 of the Code.”

Now the law is settled on the point that When the magistrate has applied his mind to the offence to proceed in a particular way, i.e. towards inquiry under Section 200,202 Cr.P.C. or U/S. 223 & 224 of BNSS in the complaint case, it can be said that the Magistrate has taken cognizance of the offence under S.210(1) (a) of BNSS. It is also settled that the magistrate is not bound to take cognizance. On receiving a complaint the magistrate has the following options:-

He can take cognizance of the offence and proceed towards enquiry if the complaint discloses a commission of offence; or

If the complaint did not disclose the commission of any offence, in such a situation the Magistrate shall dismiss the complaint at the threshold..

In a cognizable offence, Instead of taking cognizance, he can direct the police u/s.175 (3) BNSS to register the case and investigate.

 

Now the question arises at what stage the proposed accused should be called upon for a hearing as provided in the proviso to section 223(1) of BNSS?

Section 223. (1)  of BNSS provides that “A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: 

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: 

The phrase “ A magistrate having jurisdiction while  taking cognizance of an offence on complaint shall, examine upon oath the complainant and witnesses present,” used by the legislature clearly indicates that proceeding towards examining the complainant would show the intention of the court that it is taking cognizance of the offence. The proviso to section 223 prohibits the cognizance without giving the accused an opportunity of being heard. This section clearly indicates that the accused must be provided an opportunity of hearing before examination of the complainant and its witnesses. 

In my opinion, If on the receiving of complaint and after perusing it, if the magistrate is not dismissing the complaint at the initial stage and he is of the opinion that the complaint disclose offence, the magistrate should proceed to hear the proposed accused and complainant and pass a detailed order for proceeding towards examination of complainant. After hearing the proposed accused the magistrate can dismiss the complaint at the initial stage itself if he finds the complaint frivolous . In case he decides to inquire into the matter, the case may be fixed for examination of the complainant. 

The magistrate, Instead of proceeding further, can exercise the power u/s.175 (3) BNSS and transmit the complaint to concerned police to register FIR and investigate. and in such a situation the magistrate is not required to hear the proposed accused because he is not taking cognizance.

Here, I would like to refer to the case of Madhao v. State of Maharashtra, 2013 (82) ACC 378 (SC) . In this case Hon’ble Apex Court held - When a magistrate receives a complaint, he is not bound to take cognizance . The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate,... he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

Now the Question arises as to whether such a complaint be first registered as a miscellaneous case? 

The Answer in No. Registering the complaint is just ministerial work . registering of complaint itself would not amount to cognizance . It is only when the Magistrate is satisfied that the complaint discloses a commission of offence and he should proceed to examine the complainant u/s.223 of BNSS for ascertaining the truthfulness of the complaint, the magistrate is said to have taken cognizance. 

Now, in BNSS the complaint could be fixed for hearing the complainant and the proposed accused on the point to proceed further or on the point of cognizance. If upon hearing the parties the magistrate decides to proceed further he has to pass a detailed order and fix a date for examining the complainant .  Registering a complaint itself is not a cognizance. 

Readers may take the reference of the case of M/S Supreme Bhiwandi Wada Manor Infrastructure Private Limited Vs. The State Of Maharashtra (2021) 7 JT 238 : (2021) 8 SCALE 534.  In this case , The appellant filed a complaint with the Powai Police Station, Mumbai following the discovery of an alleged fraud. Thereafter,  complainant Mr. Uday Joshi has filed a complaint bearing Complaint Case No.506/SW/2015 before the Court of the Magistrate at Andheri in Mumbai .  On 11 May 2016, the Metropolitan Magistrate at the 66th Court, Andheri, Mumbai passed an order under Section 156(3) of the CrPC directing the police to investigate the complaint. Following the order of the Magistrate, a First Information Report being FIR No 2 of 2016 was registered on 24 May 2016 with the Powai Police Station for alleged offences under Sections 418,419,420, 405, 467,468, 471, 474, 120 B read with Section 34 of the Indian Penal Code. Two of the accused named in the FIR moved the Sessions Court for the grant of anticipatory bail. By its orders dated 13 February 2017 and 16 February 2017, the 6 Sessions Court granted anticipatory bail to A2 and A3. Applications for anticipatory bail were also moved before the Bombay High Court by A1 and A4. On 24 January 2017, the High Court granted interim protection against arrest to A1. The High Court granted interim protection from arrest to A4 on 16 February 2017. The grant of anticipatory bail to A2 and A3 also became a subject matter of a similar challenge by the complainant before the High Court. Eventually, by its order dated 18 December 2017, the High Court granted anticipatory bail to A1 and A4. 

The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by an affidavit dated 6 February 2016. However, the High Court held that the mandate of Section 200 of the CrPC of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court held that this raises a serious doubt about the validity of the order which has been passed under Section 156(3). 

Hon’ble supreme court held that, There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising a doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant. Secondly, the position in law as set out in the order of the Single Judge does not accord with the principles which have been consistently enunciated in the decisions of this Court specifically in the context of Chapter XV of the CrPC.   This Court in Suresh Chand Jain v. State of MP (2001) 2 SCC 628 held that- “The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code.” The principle enunciated in the above decision has been followed in several decisions of this Court. In Dilawar Singh v. State of Delhi, the decision in Suresh Chand Jain (supra) was cited with approval. In Tilak Nagar Industries Limited v. State of Andhra Pradesh, a two judge Bench of this Court held that: ―12…power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. In Anju Chaudhary v. State of Uttar Pradesh (2013) 6 SCC 384 The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202 and observed: ―40. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where a Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different classes. This view was also taken by a Bench of this Court in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] . The distinction between these two powers had also been finally stated in the judgement of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652] wherein the Court stated that : (SCC p. 218, para 23) ―23. … to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.

The High Court has evidently not been apprised of the above judgments for, if it was, it would not have proceeded to formulate a principle which is contrary to the line of precedent of this Court. 

In consequence, it disposed of the petitions questioning the grant of anticipatory bail by the Sessions Court to A3 and A4. 

The above Judgement of the Hon'ble Apex court clearly approves that registering the complaint case will not create any hurdle in deferring from taking cognizance of the complaint. There is no need to register the complaint as a miscellaneous case. Following different courses are available regarding filling and registration of the complaint -

1-on receiving the complaint a filing number is allotted. The registration of the same may be deferred and the regular complaint case can be registered only after hearing the accused and complainant on the point of admission and proceeding further.

2. On receiving the complaint it can be registered as a regular criminal case but the cognizance may be deferred and the date should be fixed for hearing the proposed accused and complainant. 

Whether the second complaint is maintainable if the first complaint has been dismissed in the absence of the complainant or otherwise under section 203 Cr.P.C./ Now section 226 BNSS.?

    As per provisions of section 226 of the Code, the complaint cannot be dismissed in the absence of the complainant.  there is no provision to dismiss the complaint in the absence of the complainant at this stage. If the complaint has been dismissed  for non presence of the complainant, by the court or a Magistrate, the second complaint is maintainable on the same facts. However, when a Magistrate conducts an inquiry under Section 224 of the Code and dismisses the complaint on merits u/s 226, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable.

The Hon‘ble Apex Court has held in the case of Pramoth Nath Talukdar vs. Saroj Ranjan Sonkar, AIR, 1962 SC 876 that an order of dismissal under section 203 of the Code of Criminal Procedure, 1973 in absence of the complainant is no bar to the entertainment of the second complaint on the same facts, but if it is dismissed on merit it will be entertained only in exceptional circumstances. The Court held that:

“Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh AIR 1930 Lah 879 ; Ram Narain Chaubey v. Panachand Jain AIR 1949 Pat 256 ; Hansabai Sayaji Payagude v. Ananda Ganuji Payagude AIR 1949 Bom 384; Doraisami v. Subramania AIR 1918 Mad 484; . In regard to the adducing of new facts for the bringing of a fresh complaint, the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das ILR 28 Cal 211 affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji ILR 28 Cal 652 (FB). It held therefore that a fresh complaint can be entertained where there is a manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.”

In Jatinder Singh and Others vs. Ranjit Kaur, (2001) 2 SCC 570 the issue was whether the first complaint having been dismissed for default, could the second complaint be maintained. The matter was considered as under:- 

“9. There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that “the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section”. However, when a Magistrate conducts aninquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. … 

… … 12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second  complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar”

Cognizance and summoning in a complaint case as per Bhartiya Nagrik Suraksha Sanhita

Due to enactment of Bhartiya Nagrik Suraksha Sanhita 2023 and insertion of the proviso under section 223, It is mandatory to hear the proposed accused before taking cognizance. Due to this Proviso, following points are the matter of discussions amongst the judicial fraternity. 

1. At what stage the proposed accused should be called upon for hearing on the point of cognizance?

2. What would be the right course for registering the complaint, when the application under section 173(4) of BNSS is disposed of in a manner that it should be treated as complaint, and the magistrate decides to proceed as a complaint case?

In this short Article, I have tried to put my opinion before the learned readers for discussions and appreciation . It is just my personal understanding. Readers are expected to form their own opinion.  

To understand the stage when the proposed accused should be called upon for hearing in a complaint case, It is important to understand the stage, when a magistrate is said to have taken cognizance of the complaint? Here it is also important to understand that taking cognizance and summoning of the accused are two different stages. The cognizance is taken of the offence and not the offender. Section 190 of Cr.P.C. and section 210 of BNSS lays down how cognizance of offences will be taken by a Magistrate. Section 210 provides as follows-

210. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— 

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence; 

(b) upon a police report (submitted in any mode including electronic mode) of such facts; 

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

There are two different parts in a complaint and a police report placed before the magistrate. One is the facts constituting the offence and the other is the offender. In other words the court has to see as to whether any offence has been committed, and if committed, by whom?  This is the reason the legislature has mandated u/s.193(3)(i)(d)  of BNSS that the police report shall state - whether any offence appears to have been committed and, if so, by whom? 

When the court applies its mind on the complaint or police report and finds that the offence is committed and the matter requires enquiry or trial then, it is said that the court has taken cognizance of the offence . Thereafter the court is bound to find out the sufficient grounds to summon the accused against whom the complaint or police report was filed. Applying the judicial minds to find out sufficient grounds for summoning the accused for trial is called the enquiry. 

Here the difference, between cognizance and summoning on a police report and cognizance and summoning on complaint, comes into play. In a complaint case the inquiry involves examination of the complainant and his witnesses if any and perusing the materials placed in support of the complaint. In some cases a post cognizance investigation in the form of enquiry is ordered by the Court. In the matter of the police report, the court has to apply its minds to the police report and its all enclosures to find out the commission of an offence and, at the same time, grounds for summoning the accused. But in a complaint case, there is a long gap between cognizance and summoning of the accused. In a complaint case, the court has to examine the complainant and his/her witnesses and in some cases, a post-cognizance investigation is ordered by the court.  If the court after examining the complainant and its witnesses, if any and, applying its minds on the materials placed before it, does not find sufficient grounds, the court can deny to summon the proposed accused and can dismiss the complaint. But this option is not available in the matters instituted on the police report. The reason behind is simple: a police report is filed after detailed investigation and if the court is not satisfied with the report it can take other recourse, but  once the court has taken cognizance of the police report it has no power to dismiss or reject the same. But in a complaint case the magistrate is empowered by the code to dismiss and reject the complaint after cognizance also.

Here I would like to refer to the case of CREF Finance Ltd vs Shree Shanthi Homes Pvt. Ltd. & Anr, 2005 Cr.L.J.4525 SC. In this case, Hon‘ble Supreme Court held-

“The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate pursues the complaint intending to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out.”

In the case of the State of Karnataka and Another Vs. Pastor P. Raju (2006) 6 SCC 728 The Court held that “The heading of Chapter XIV of Code of Criminal Procedure is "Conditions Requisite For Initiation Of Proceedings".The very first Section in the said Chapter, viz., Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is - 'judicial hearing of a matter. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earlier decision of this Court on the point is R.R. Chari v. State of U.P. AIR 1951 SC 207, wherein it was held:-

"Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence." It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of a process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.”

The Hon‘ble Supreme Court has held in the case of Madhao v. the State of Maharashtra, 2013 (82) ACC 378 (SC) that - "When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself”

In the case of Irshad Khan and Others vs. the State of U.P. and another, 2014 (84) A.C.C. 95 (All.) Hon'ble Allahabad High Court has held as under-

“In a complaint case on receipt of a complaint and on its perusal, if the Magistrate is satisfied that the complaint discloses a commission of offence he may proceed further.It must be held to have taken cognizance of an offence under Section 190 (1) (a) of the Code. The Magistrate is not bound to take cognizance if he is of the opinion that the complaint did not disclose the commission of any offence and in such a situation the Magistrate shall dismiss the complaint at the threshold. However, once he takes cognizance he must examine upon oath the complainant and his witnesses under Section 200 of the Code.”

Now the law is settled on the point that When the magistrate has applied his mind to the offence to proceed in a particular way, i.e. towards inquiry under Section 200,202 Cr.P.C. or U/S. 223 & 224 of BNSS in the complaint case, it can be said that the Magistrate has taken cognizance of the offence under S.210(1) (a) of BNSS. It is also settled that the magistrate is not bound to take cognizance. On receiving a complaint the magistrate has the following options:-

He can take cognizance of the offence and proceed towards enquiry if the complaint discloses a commission of offence; or

If the complaint did not disclose the commission of any offence, in such a situation the Magistrate shall dismiss the complaint at the threshold..

In a cognizable offence, Instead of taking cognizance, he can direct the police u/s.175 (3) BNSS to register the case and investigate.

 

Now the question arises at what stage the proposed accused should be called upon for a hearing as provided in the proviso to section 223(1) of BNSS?

Section 223. (1)  of BNSS provides that “A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: 

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: 

The phrase “ A magistrate having jurisdiction while  taking cognizance of an offence on complaint shall, examine upon oath the complainant and witnesses present,” used by the legislature clearly indicates that proceeding towards examining the complainant would show the intention of the court that it is taking cognizance of the offence. The proviso to section 223 prohibits the cognizance without giving the accused an opportunity of being heard. This section clearly indicates that the accused must be provided an opportunity of hearing before examination of the complainant and its witnesses. 

In my opinion, If on the receiving of complaint and after perusing it, if the magistrate is not dismissing the complaint at the initial stage and he is of the opinion that the complaint disclose offence, the magistrate should proceed to hear the proposed accused and complainant and pass a detailed order for proceeding towards examination of complainant. After hearing the proposed accused the magistrate can dismiss the complaint at the initial stage itself if he finds the complaint frivolous . In case he decides to inquire into the matter, the case may be fixed for examination of the complainant. 

The magistrate, Instead of proceeding further, can exercise the power u/s.175 (3) BNSS and transmit the complaint to concerned police to register FIR and investigate. and in such a situation the magistrate is not required to hear the proposed accused because he is not taking cognizance.

Here, I would like to refer to the case of Madhao v. State of Maharashtra, 2013 (82) ACC 378 (SC) . In this case Hon’ble Apex Court held - When a magistrate receives a complaint, he is not bound to take cognizance . The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate,... he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

Now the Question arises as to whether such a complaint be first registered as a miscellaneous case? 

The Answer in No. Registering the complaint is just ministerial work . registering of complaint itself would not amount to cognizance . It is only when the Magistrate is satisfied that the complaint discloses a commission of offence and he should proceed to examine the complainant u/s.223 of BNSS for ascertaining the truthfulness of the complaint, the magistrate is said to have taken cognizance. 

Now, in BNSS the complaint could be fixed for hearing the complainant and the proposed accused on the point to proceed further or on the point of cognizance. If upon hearing the parties the magistrate decides to proceed further he has to pass a detailed order and fix a date for examining the complainant .  Registering a complaint itself is not a cognizance. 

Readers may take the reference of the case of M/S Supreme Bhiwandi Wada Manor Infrastructure Private Limited Vs. The State Of Maharashtra (2021) 7 JT 238 : (2021) 8 SCALE 534.  In this case , The appellant filed a complaint with the Powai Police Station, Mumbai following the discovery of an alleged fraud. Thereafter,  complainant Mr. Uday Joshi has filed a complaint bearing Complaint Case No.506/SW/2015 before the Court of the Magistrate at Andheri in Mumbai .  On 11 May 2016, the Metropolitan Magistrate at the 66th Court, Andheri, Mumbai passed an order under Section 156(3) of the CrPC directing the police to investigate the complaint. Following the order of the Magistrate, a First Information Report being FIR No 2 of 2016 was registered on 24 May 2016 with the Powai Police Station for alleged offences under Sections 418,419,420, 405, 467,468, 471, 474, 120 B read with Section 34 of the Indian Penal Code. Two of the accused named in the FIR moved the Sessions Court for the grant of anticipatory bail. By its orders dated 13 February 2017 and 16 February 2017, the 6 Sessions Court granted anticipatory bail to A2 and A3. Applications for anticipatory bail were also moved before the Bombay High Court by A1 and A4. On 24 January 2017, the High Court granted interim protection against arrest to A1. The High Court granted interim protection from arrest to A4 on 16 February 2017. The grant of anticipatory bail to A2 and A3 also became a subject matter of a similar challenge by the complainant before the High Court. Eventually, by its order dated 18 December 2017, the High Court granted anticipatory bail to A1 and A4. 

The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by an affidavit dated 6 February 2016. However, the High Court held that the mandate of Section 200 of the CrPC of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court held that this raises a serious doubt about the validity of the order which has been passed under Section 156(3). 

Hon’ble supreme court held that, There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising a doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant. Secondly, the position in law as set out in the order of the Single Judge does not accord with the principles which have been consistently enunciated in the decisions of this Court specifically in the context of Chapter XV of the CrPC.   This Court in Suresh Chand Jain v. State of MP (2001) 2 SCC 628 held that- “The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code.” The principle enunciated in the above decision has been followed in several decisions of this Court. In Dilawar Singh v. State of Delhi, the decision in Suresh Chand Jain (supra) was cited with approval. In Tilak Nagar Industries Limited v. State of Andhra Pradesh, a two judge Bench of this Court held that: ―12…power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. In Anju Chaudhary v. State of Uttar Pradesh (2013) 6 SCC 384 The court held that the power of the Magistrate under Section 156(3) is not affected by the provisions of Section 202 and observed: ―40. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where a Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different classes. This view was also taken by a Bench of this Court in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] . The distinction between these two powers had also been finally stated in the judgement of this Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652] wherein the Court stated that : (SCC p. 218, para 23) ―23. … to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.

The High Court has evidently not been apprised of the above judgments for, if it was, it would not have proceeded to formulate a principle which is contrary to the line of precedent of this Court. 

In consequence, it disposed of the petitions questioning the grant of anticipatory bail by the Sessions Court to A3 and A4. 

The above Judgement of the Hon'ble Apex court clearly approves that registering the complaint case will not create any hurdle in deferring from taking cognizance of the complaint. There is no need to register the complaint as a miscellaneous case. Following different courses are available regarding filling and registration of the complaint -

1-on receiving the complaint a filing number is allotted. The registration of the same may be deferred and the regular complaint case can be registered only after hearing the accused and complainant on the point of admission and proceeding further.

2. On receiving the complaint it can be registered as a regular criminal case but the cognizance may be deferred and the date should be fixed for hearing the proposed accused and complainant. 

Whether the second complaint is maintainable if the first complaint has been dismissed in the absence of the complainant or otherwise under section 203 Cr.P.C./ Now section 226 BNSS.?

    As per provisions of section 226 of the Code, the complaint cannot be dismissed in the absence of the complainant.  there is no provision to dismiss the complaint in the absence of the complainant at this stage. If the complaint has been dismissed  for non presence of the complainant, by the court or a Magistrate, the second complaint is maintainable on the same facts. However, when a Magistrate conducts an inquiry under Section 224 of the Code and dismisses the complaint on merits u/s 226, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable.

The Hon‘ble Apex Court has held in the case of Pramoth Nath Talukdar vs. Saroj Ranjan Sonkar, AIR, 1962 SC 876 that an order of dismissal under section 203 of the Code of Criminal Procedure, 1973 in absence of the complainant is no bar to the entertainment of the second complaint on the same facts, but if it is dismissed on merit it will be entertained only in exceptional circumstances. The Court held that:

“Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh AIR 1930 Lah 879 ; Ram Narain Chaubey v. Panachand Jain AIR 1949 Pat 256 ; Hansabai Sayaji Payagude v. Ananda Ganuji Payagude AIR 1949 Bom 384; Doraisami v. Subramania AIR 1918 Mad 484; . In regard to the adducing of new facts for the bringing of a fresh complaint, the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das ILR 28 Cal 211 affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji ILR 28 Cal 652 (FB). It held therefore that a fresh complaint can be entertained where there is a manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.”

In Jatinder Singh and Others vs. Ranjit Kaur, (2001) 2 SCC 570 the issue was whether the first complaint having been dismissed for default, could the second complaint be maintained. The matter was considered as under:- 

“9. There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that “the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section”. However, when a Magistrate conducts aninquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. … 

… … 12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second  complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar”

It has been held in the case of Jai Ram and others v. State of UP & another; 2013 (82) ACC 277 that there is no dispute regarding the maintainability of the second complaint as laid down in various pronouncements. Hon‘ble Supreme Court in the case of Pramoth Nath Talukdar and another vs. Saroj Ranjan Sonkar; AIR 1962 SC 876 has laid down that:

“There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure, 1973. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure,1973,exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words there must be good reasons, why the Magistrate thinks that there is no “sufficient ground for the proceeding” with the second complaint, when a previous complaint on the same allegations was dismissed under section 203 of the Code of Criminal Procedure,1973.

The question now is what should be those exceptional circumstances? In Queen-Empress vs. Dalgobind Das(1)Maclean C.J. said “I only desire to add that No Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with a Magistrate of coordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice‖. In the same decision, the Apex Court has also laid down the test to determine the exceptional circumstances which are-(1)-manifest error(2)-manifest miscarriage of justice, and (3)- new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.

 The Hon‘ble Apex Court has expressed its view in the case of Poonam Chand  Jain and another vs.Farzru,2010(68)A.C.C.1004 S.C. that if the second complaint is filed on the almost identical facts as raised in the first complaint. The first complaint was dismissed on merits. The core of both the complaints was same.No case made out that despite due diligence, facts alleged in the second complaint were not within the application of the first complaint. No exceptional circumstances explained in the terms of Pramath Nath‘s case. The second complaint can not be entertained. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment, the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which is in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. 

In its recent judgement in the case of Samta Naidu & Anr. Vs. State Of Madhya Pradesh And Anr.: 2020 SCC OnLine SC 252- hon’ble Supreme Court has held in para 14.  that The application of the principles laid down in Taluqdar AIR, 1962 SC 876 and in Jatinder Singh(2001) 2 SCC 570 shows that “a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance”. It was further laid down that “if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different”. To similar effect are the conclusions in Ranvir Singh (2009) 9 SCC 642 and Poonam Chand Jain (2010) 2 SCC 631. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar AIR, 1962 SC 876. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable. What has been laid down is that “if the core of both the complaints is same”, the second complaint ought not to be entertained. 

To conclude we can say that the law is well settled on the point. A second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance, if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 226 of the BNSS was on merits the position could be different. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts(if the core of both the complaints is same) ” which were raised in the first complaint would not be maintainable.  

It has been held in the case of Jai Ram and others v. State of UP & another; 2013 (82) ACC 277 that there is no dispute regarding the maintainability of the second complaint as laid down in various pronouncements. Hon‘ble Supreme Court in the case of Pramoth Nath Talukdar and another vs. Saroj Ranjan Sonkar; AIR 1962 SC 876 has laid down that:

“There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure, 1973. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure,1973,exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words there must be good reasons, why the Magistrate thinks that there is no “sufficient ground for the proceeding” with the second complaint, when a previous complaint on the same allegations was dismissed under section 203 of the Code of Criminal Procedure,1973.

The question now is what should be those exceptional circumstances? In Queen-Empress vs. Dalgobind Das(1)Maclean C.J. said “I only desire to add that No Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with a Magistrate of coordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice‖. In the same decision, the Apex Court has also laid down the test to determine the exceptional circumstances which are-(1)-manifest error(2)-manifest miscarriage of justice, and (3)- new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.

 The Hon‘ble Apex Court has expressed its view in the case of Poonam Chand  Jain and another vs.Farzru,2010(68)A.C.C.1004 S.C. that if the second complaint is filed on the almost identical facts as raised in the first complaint. The first complaint was dismissed on merits. The core of both the complaints was same.No case made out that despite due diligence, facts alleged in the second complaint were not within the application of the first complaint. No exceptional circumstances explained in the terms of Pramath Nath‘s case. The second complaint can not be entertained. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment, the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which is in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. 

In its recent judgement in the case of Samta Naidu & Anr. Vs. State Of Madhya Pradesh And Anr.: 2020 SCC OnLine SC 252- hon’ble Supreme Court has held in para 14.  that The application of the principles laid down in Taluqdar AIR, 1962 SC 876 and in Jatinder Singh(2001) 2 SCC 570 shows that “a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance”. It was further laid down that “if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different”. To similar effect are the conclusions in Ranvir Singh (2009) 9 SCC 642 and Poonam Chand Jain (2010) 2 SCC 631. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar AIR, 1962 SC 876. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable. What has been laid down is that “if the core of both the complaints is same”, the second complaint ought not to be entertained. 

To conclude we can say that the law is well settled on the point. A second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance, if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 226 of the BNSS was on merits the position could be different. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts(if the core of both the complaints is same) ” which were raised in the first complaint would not be maintainable.  

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Disclaimer: This article is based on the research and personal understanding of the Author. It is only for academic purposes and readers are not expected to follow or rely on the opinion of the author. they can form their own opinion. It is also made clear that this web page belongs to the author only and it has nothing to do with any organisation or Institution or working place of the author.

Rajneesh Mohan Verma

laint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh AIR 1930 Lah 879 ; Ram Narain Chaubey v. Panachand Jain AIR 1949 Pat 256 ; Hansabai Sayaji Payagude v. Ananda Ganuji Payagude AIR 1949 Bom 384; Doraisami v. Subramania AIR 1918 Mad 484; . In regard to the adducing of new facts for the bringing of a fresh complaint, the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das ILR 28 Cal 211 affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji ILR 28 Cal 652 (FB). It held therefore that a fresh complaint can be entertained where there is a manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.”

In Jatinder Singh and Others vs. Ranjit Kaur, (2001) 2 SCC 570 the issue was whether the first complaint having been dismissed for default, could the second complaint be maintained. The matter was considered as under:- 

“9. There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that “the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section”. However, when a Magistrate conducts aninquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. … 

… … 12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second  complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar”

It has been held in the case of Jai Ram and others v. State of UP & another; 2013 (82) ACC 277 that there is no dispute regarding the maintainability of the second complaint as laid down in various pronouncements. Hon‘ble Supreme Court in the case of Pramoth Nath Talukdar and another vs. Saroj Ranjan Sonkar; AIR 1962 SC 876 has laid down that:

“There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure, 1973. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure,1973,exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words there must be good reasons, why the Magistrate thinks that there is no “sufficient ground for the proceeding” with the second complaint, when a previous complaint on the same allegations was dismissed under section 203 of the Code of Criminal Procedure,1973.

The question now is what should be those exceptional circumstances? In Queen-Empress vs. Dalgobind Das(1)Maclean C.J. said “I only desire to add that No Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with a Magistrate of coordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice‖. In the same decision, the Apex Court has also laid down the test to determine the exceptional circumstances which are-(1)-manifest error(2)-manifest miscarriage of justice, and (3)- new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.

 The Hon‘ble Apex Court has expressed its view in the case of Poonam Chand  Jain and another vs.Farzru,2010(68)A.C.C.1004 S.C. that if the second complaint is filed on the almost identical facts as raised in the first complaint. The first complaint was dismissed on merits. The core of both the complaints was same.No case was made out that despite due diligence, facts alleged in the second complaint were not within the application of the first complaint. No exceptional circumstances explained in the terms of Pramath Nath‘s case. The second complaint can not be entertained. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment, the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which is in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. 

In its recent judgement in the case of Samta Naidu & Anr. Vs. State Of Madhya Pradesh And Anr.: 2020 SCC OnLine SC 252- hon’ble Supreme Court has held in para 14.  that The application of the principles laid down in Taluqdar AIR, 1962 SC 876 and in Jatinder Singh(2001) 2 SCC 570 shows that “a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance”. It was further laid down that “if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different”. To similar effect are the conclusions in Ranvir Singh (2009) 9 SCC 642 and Poonam Chand Jain (2010) 2 SCC 631. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar AIR, 1962 SC 876. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable. What has been laid down is that “if the core of both the complaints is same”, the second complaint ought not to be entertained. 

To conclude we can say that the law is well settled on the point. A second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance, if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 226 of the BNSS was on merits the position could be different. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts(if the core of both the complaints is same) ” which were raised in the first complaint would not be maintainable.  

***************************************************

Disclaimer: This article is based on the research and personal understanding of the Author. It is only for academic purposes and readers are not expected to follow or rely on the opinion of the author. they can form their own opinion. It is also made clear that this web page belongs to the author only and it has nothing to do with any organisation or Institution or working place of the author.

Rajneesh Mohan Verma