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