TMI Blog1961 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants had made to the said High Court against an order of the Chief Presidency Magistrate of Calcutta dated April 11, 1959 by which the said Magistrate issued processes against the two appellants for offences alleged to have been committed by them under ss. 467 and 471 read with s. 109 of the Indian penal Code on a complaint made by Saroj Ranjan Sarkar, respondent herein. By the second order a Division Bench of the said High Court refused the prayer of the appellants for a certificate under Art. 134(1)(c) of the Constitution of India that the case was a fit one for appeal to this Court. This refusal was based primarily on the ground that the order sought to be appealed from was not a final order within the meaning of the Article aforesaid. In pursuance of the special leave granted by this Court four appeals were filed, two against the order dated December 22/23, 1960 and the other two against the order dated March 17, 1961. The two appeals numbered 76 and 78 of 1961 from the order dated March 17, 1961 were withdrawn on the ground that special leave having been granted against the order of the Special Bench dated December 22/23, 1960, the appellants did not wish to press the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad settled his disputes with the respondents therein and did not want to proceed with the appeal The appeal was accordingly withdrawn on March 12, 1959. Then, within about 22 days of that order, Saroj Ranjan Sarkar filed the complaint which has given rise to the present proceedings. For convenience and brevity, I shall refer to Promode Ranjan Sarkar s complaint as the first complaint and Saroj Ranjan Sarkar s as the second complaint. It is necessary here to give a little more of the background history of the second complaint. As stated earlier, the late Nalini Ranjan Sarkar was a well-known person in Bengal. He was the Governing or Managing Director of N. R. Sarkar Co. Ltd., which managed several public limited companies, such as, Hindustan Development Corporation Ltd., Hindustan Heavy Chemicals Ltd., and Hindusthan Pilkington Glass Works Ltd. He was also closely connected with the Hindusthan Cooperative Insurance Society Ltd., of which he held a large number of shares. On January 4, 1948 he obtained leave of absence from the Directors of N. R. Sarkar Co. Ltd. for a period of one year with a view to joining the Ministry in West Bengal and he assumed office as Finance Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Ltd. as its Managing Director. This led to some trouble between Promode Ranjan Sarkar and the appellants and also to some correspondence between Promode Ranjan Sarkar on one side and N. R. Sarkar Co. Ltd. on the other, details whereof are not necessary for our purpose. On September 22, 1953 a meeting of the Board of Directors of N.R. Sarkar Co. Ltd. was held. It was alleged that the meeting was held irregularly without any agenda and a resolution was adopted, despite Promode Ranjan Sarkar s protest, by which the appointment of Pramatha Nath Talukdar as Managing Director of N. R. Sarkar Co. Ltd. was renewed for seven years. In September, 1953 Promode Ranjan Sarkar formally wrote to N.R. Sarkar Co. Ltd. for inspection of the alleged deeds of agreement and transfer. On October 1, 1953 an inspection was taken, and on October 13, 1953 Promode Ranjan Sarkar was allowed to take photographs of the relevant portions of the documents. On this occasion Promode Ranjan Sarkar also inspected the minutes of the proceedings of N. R. Sarkar Co. Ltd. and it was alleged that the proceedings dated January 16, 1948 purporting to bear the signature of Nalini Ranjan Sarkar were forged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the original document could not be later found, and on behalf of the appellants and other accused persons it was stated that the document was not in their possession or control. As stated earlier, Promode Ranjan Sarkar had obtained a photostatic copy of the relevant portions of the document. As to this document the main allegation of the complainant was that it was engrossed on a rupee stamp-paper which had been issued, on renewal, in the name of P.D. Himatsinghka Co., a firm of solicitors in Calcutta and evidence was led at the enquiry into the first complaint that the paper was stolen from that firm and furthermore that the signature on the document purporting to be that of Nalini Ranjan Sarkar was not his signature at all. With regard to the minutes of the proceedings dated January 16, 1948 the allegation was that the minutes were typed on a sheet of paper bearing the letter-head N.R. Sarkar Co. Ltd. with telephone number City 6091 printed thereon; but the City Exchange did not come into existence until December, 1948 and the telephone connection relating to number City 6091 was obtained for the first time by the Hindusthan Co-operative Insurance Society Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the unregistered deed of agreement. The learned Chief Presidency Magistrate held that there was no sufficient ground for proceedings against the other two accused persons, namely, Narendra Nath Law and Amiya Chakravarty. Against the aforesaid order of the Chief Presidency Magistrate two applications in revision were filed by the appellants herein. These applications in revision were first heard by a division Bench of two Judges of the Calcutta High Court, P. B. Mukherjee and H. K. Bose, JJ. In view of the importance of the questions raised in the two applications in revision and some earlier decisions of the Calcutta High Court bearing on those questions to which I shall presently refer, P.B. Mukherjee, J. came to the conclusion that the applications should be referred to a larger Bench to be constituted by the Chief Justice under the rules of the Court. H.K. Bose. J. (as he then was) was inclined to take the view that the applications in revision must fail, but in deference to the views expressed by P.B. Mukherjee, J. agreed that the applications should be referred to the Chief Justice for constituting a larger Bench. The matter was then referred to the learned Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges. There is no proviso to this rule similar to the proviso to r. 1, referred to earlier, and the argument is that in the absence of such a proviso it was not open to the Division Bench consisting of Mukherjee and Bose, JJ. to refer the case back to the Chief Justice for the constitution of a larger Bench (though it was open to the Chief Justice to constitute originally a Division Bench of three Judges to hear the case), and if the Judges were equally divided in opinion, s. 429 of the Code of Criminal procedure would apply and the case had to be laid before another Judge and judgment given according to the opinion of the third Judge. I am unable to accept this argument as correct. It is clear from the rules in Chapter II that the constitution of Benches is a matter for the Chief Justice and r. 13 in Chapter II says that a Full Bench appointed for any of the purposes mentioned in Chapter VII, rr. 1 to 5, shall consist of five Judges or three Judges as the Chief Justice may appoint. Now, r. 1 in Ch. VII says inter alia that whenever one Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice, I think, must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or Otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case. Section 229 of the Code of Criminal Procedure does not apply to such a case because it is not a case where the Judges composing the Court are equally divided in opinion. Rather it is a case where the Judges composing the Division Bench consider that the case is one of such importance that it should be heard by a larger Bench. My conclusion, therefore, is that there was nothing illegal in the Division Bench consisting of Mukherjee and Bose. JJ. referring the case back to the Chief Justice; nor was there anything illegal in the Chief Justice constituting a special Bench of three Judges to hear the applications in revision. The special Bench constituted by the Chief Justice was lawfully in seizin of the case and was comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pointed out the distinction between the offence of criminal conspiracy as defined in s. 120A and punishable by s. 120B and the offence of abetment by conspiracy as defined in the clause, secondly, in s. 107 of the Indian Penal Code. It then pointed out that the Chief Presidency Magistrate did not take cognizance of the offence of criminal conspiracy to commit forgery which would be punishable under s. 120B read with s. 467 of the Indian Penal Code, but he took cognizance of the offence of abetment of forgery punishable under s. 467 read with s. 109 of the Indian Penal Code and for this offence no sanction under s. 196A of the Code of Criminal Procedure was necessary. The special Bench further expressed the view that the primary offences which the second complaint disclosed where the offence of forgery, of using forged documents as genuine, and of abetment of the said offences and as cognizance of these offences did not require sanction or prior consent of the authorities mentioned in s. 196A, the order of the Chief Presidency Magistrate could not be said to have violated the provisions of that section. The correctness of these views of the special Bench has been very seriously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedure. It was held that the facts which constituted the offence under s. 297 where distinct from those which constituted an offences under s. 182, as the act of trespass was alleged to have been committed after the making of the false report, so s. 195 was no bar to the trial of the charge under s. 297. It was further held that as regards the charge under s. 500 where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by provisions of s. 195 of the Code of Criminal Procedure from seeking redress for the offence committed against him. Referring to s. 195 of the Code of Criminal Procedure Mahajan, J. who delivered the judgment of the Court said: The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well. The allegation made in a complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curs in para. 5 of the complaint, the facts alleged in the petition of complaint essentially disclose an offence of abetment by conspiracy. This brings us to the distinction between the offence of criminal conspiracy as defined in s. 120A and the offence of abetment by conspiracy as defined in s. 107 of the Indian Penal Code. Section 120A which defines the offence of criminal conspiracy and s. 120B which punishes the offence are in Ch. VA of the Indian Penal Code. This Chapter introduced into the criminal law of India a new offence, namely, the offence of criminal conspiracy. It was introduced by the criminal Law Amendment Act, 1913 (VIII of 1913). Before that, the sections of the Indian Penal Code which directly dealt with the subject of conspiracy were these contained in Ch. V and s. 121 (Ch. VI) of the Code. The present case is not concerned with the kind of conspiracy referred to in s. 121A. The point before us is the distinction between the offence of abetment as defined in s. 107 (Ch. V) and the offence of criminal conspiracy as defined in s. 120A (Ch. VA). Under s. 107, second clause, a person abets the doing of a thing, who engages with one or more other person or persons i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy v. The Queen (1): When to agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. Put very briefly, the distinction between the offence of abetment under the second clause of s. 107 and that of criminal conspiracy under s. 120A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence. So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong period. The question was treated as one of propriety rather than of legality. The question of sanction was also considered in that case, but in view of the order of remand passed, no opinion was expressed thereon. The special Bench expressed the view that it was not necessary to go to the extent of saying that in a case of this nature ss. 120A and 120B became wholly irrelevant. The special Bench proceeded on the footing that irrespective of whether ss. 120A and 120B became wholly irrelevant or not the second complaint undoubtedly disclosed an offence of abetment by conspiracy and it was open to the Chief Presidency Magistrate to take cognizance of that offence. I think that there are no good reasons for holding that the view taken by the special Bench is not correct. In my opinion, the special Bench rightly overruled the objection as to the alleged violation of the provisions of s. 196A of the Code of Criminal Procedure. Now, I come to the third and principal question agitated in these appeals. On behalf of one of the appellants, Saurindra Mohan Basu, Mr. Purushottam Trikumdas has argued before us that when the first complaint containing more or less the same allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en there be no express provision in the Code, what is there to warrant us in implying or in effect introducing into the Code a provision of such serious import x x x? In the absence of any other provision in the Code to justify such an implication x x x x I can appreciate no sound ground for the Court so acting; were it to do so it would go perilously near to legislating, instead of confining itself to construing the Acts of the Legislature. The question was then considered by a Full Bench of the Calcutta High Court in Dwarka Nath Mondul v. Beni Madhab Banerjee (1) and it was held by the Full Bench (Ghose, J. dissenting) that a Presidency Magistrate was competent to rehear a warrant case triable under Ch. XXI of the Code of Criminal Procedure in which he had earlier discharged the accused person. Nilratan Sen s case(2) and Kamal Chandra Pal s case(3) were referred to in the arguments as summarised in the report, but the view expressed therein was not accepted. Dealing with the question Princep, J. said: There is no bar to further proceedings under the law, and, therefore, a Magistrate to whom a complaint has been made under such circumstances, is bound to proceed in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew expressed by the High Courts 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 s. 203 of the Code of Criminal Procedure. I also accept the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under s. 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations; in other words, there must be good reasons why the Magistrate thinks that there is sufficient ground for proceeding with the second complaint, when a previous complaint on the same allegations was dismissed under s. 203 of the Code of Criminal Procedure. The question now is, what should be those exceptional circumstances ? In Queen Empress v. Dolagobind Dass (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 by 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts are adduced which the complainant had not knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. It will be noticed that in the test thus laid down the exceptional circumstances are brought under three categories; (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. Any exceptional circumstances coming within any one or more of the aforesaid three categories would fulfil the test. In Ram Narain v. Panachand Jain (1) it was observed that an exhaustive list of the exceptional circumstances could not be given though some of the categories were mentioned. One new category mentioned was where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. This new category would perhaps fall within the category of manifest error or miscarriage of justice. It appears to me that the test laid down in the earliest of the aforesaid decisions. Queen Empress v. Dolegobind Dass (2), is really wide enough to cover the other categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200, 202 and 203 of the Code of Criminal Procedure it was there observed: The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not any that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. It was further observed that if the Magistrate had not misdirected himself as to the scope of an enquiry under s. 202 and had applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception could not be accepted by in arriving at his judgment. In another decisions of this Court Ramgopal Genapatria Ruia v. State of Bombay (2) the expression sufficient grounds occurring in ss. 209, 210 and 213 of the Code of Criminal Procedure was considered and it was held that the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Magistrate gave a wrong direction to the whole proceedings on the first complaint and the order of dismissal passed by him was due to a manifest error and resulted in miscarriage of justice. The second exceptional circumstance is as to the presence of the telephone number City 6091 printed on the sheet of paper on which were typed the minutes of the proceedings dated January 16, 1948. When the first complaint was dealt with by the Chief Presidency Magistrate no evidence was led to show that the City Exchange did not come into existence until December, 1948 and that the telephone connection relating to that particular number was obtained for the first time by the Hindusthan Co-operative Insurance Society Ltd. on or about March 18, 1949. This I think, would be a new matter which was not considered when the first complaint was dismissed under s. 203 of the Code of Criminal Procedure. There was a good deal of argument as to whether this matter relating to the City Exchange was known to the complainant and his brothers from before, and if so, why they did not bring it to the notice of the learned Chief Presidency Magistrate who dealt with the first complaint. it appears that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence against him and the learned Chief Presidency Magistrate was wrong in issuing process against him. It is only necessary to point out that the learned Chief Presidency Magistrate found that there was a prima facie case against Saurindra Mohan Basu. He had attested the signature of the late Nalini Ranjan Sarkar and if that signature was forged, then that would be prima facie evidence against Saurindra Mohan Basu also. My learned brethren have taken the view that the entertaining of the second complaint in the circumstances of this case is a gross abuse of the processes of the Court. I find myself unable to subscribe to that view. My conclusion is just the opposite, namely, that the entertaining of the second complaint fully serves the interests of justice. I am further of the opinion that its dismissal would defeat the ends of justice. In this connection, I have already referred to the two exceptional circumstances which exist: one is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of ss. 203 and 204 of the Code of Criminal Procedure; the second is that Debabrata Mookerjee, J. wrongl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, but means such evidence as is sufficient to put the accused person upon trial by the jury. In ss. 203 and 204, Criminal Procedure Code, the expres- sion is sufficient ground for proceeding which really means sufficient ground for proceeding with the complaint. Sufficient ground for proceeding with the complaint is one matter and sufficient ground for convicting an accused person is quite a different matter. It is this distinction which has to be kept in mind and the failure to keep such a distinction in mind in the present case has resulted in a manifest error. Debabrata Mookerjee, J. detailed seven circumstances as those on which the complainant relied in support of the allegation of forgery. He then went on to deal those circumstances as though the function of the Court then was to find out whether there was sufficient ground for convicting the accused person. I refer particularly to the view expressed by the learned Chief Presidency Magistrate to the effect that one of the documents in question might have been ante-dated by Nalini Ranjan Sarkar himself. This was a suggestion made on behalf of the accused persons as a possible defence to the charge of forgery and it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a denial of justice. Debabrata Mookerjee, J. took the view that it was a new matter which could not be taken into consideration and, pradoxically enough, the argument before us is that not being a new matter, it should not have been taken into consideration in connection with the second complaint. This paradox clearly demonstrates the injustice that will result from a failure to take into consideration circumstances which are decisive of the allegations made in the complaint. When the complainant made an application for a certificate for appeal to the Supreme Court against the order passed by Dababrata Mookerjee. J., he forcefully contended that the refusal to take notice of the circumstances relating to the installation of the City Exchange amounted to a denial of justice. This application was dealt with by a Bench of two Judges of the Calcutta High Court (Das Gupta and Bachawat, JJ.). The learned Judges expressed the view that if they were dealing with the matter, they would have thought it right to refer to the appropriate books for ascertaining the date on which the City Exchange came into existence. They, however, felt that the matter was within the discretion of Debarata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasised by the learned Chief Presidency Magistrate (Shri Bijayesh Mukherjee) who dealt with the second complaint as also by the Special Bench of three Judges who dealt with the matter on the revision applications made against the order of the learned Chief Presidency Magistrate on the second complaint. It is also worthy of note that this Court must have granted special leave in respect of the order passed on the first complaint, because it felt that there were arguable points in support of the application for special leave, one of such points apparently being the refusal to consider the circumstances relating to the installation of the City Exchange. On the second complaint the learned Chief Presidency Magistrate, as also the High Court, took those circumstances into consideration and rightly held that those circumstances clearly indicated that the allegations made in the complaint were prima facie true. The learned Chief Presidency Magistrate further held that having regard to the antecedent circumstances, there was no undue delay in filing the second complaint. He further held that there was no intention to blackmail, in the sense that one brother having failed on the first comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of N. R. Sarkar s deceased brother, held one share. As Mr. N. R. Sarkar became the Finance Minister in the West Bengal Government, he obtained leave of absence on January 4, 1948, from the directors of N. R. Sarkar Co. Ltd. for a period of one year which was subsequently extended for another year. This was by a resolution passed on March 10, 1948. Mr. N. R. Sarkar joined the Government on January 23, 1948 and in August 1948 Dr. N. N. Law became a director of N. R. Sarkar Co., Ltd. On July 31, 1951 Mr. N. R. Sarkar executed a deed of trust in respect of 2920 shares out of his holding in Hindusthan Cooperative Society Ltd. and 3649 shares out of the shares held by him in N. R. Sarkar Co. Ltd. By this deed he appointed as trustees his younger brother Promode Ranjan Sarkar, appellant P. N. Taluqdar and Dr. N. N. Law and the beneficiaries under the trust deed were his four younger brothers including the complainant and Shanti Ranjan Sarkar, his nephew. It is alleged that the balance of 1,000 shares was to be kept in trust by the appellant P. N. Taluqdar for the benefit of his brothers and nephew. N. R. Sarkar died on January 25, 1953. It is alleged that a few days after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to accused No. 1 for an alleged consideration of ₹ 1,00,000(Rupees One Lakh) also purporting to have been executed by the late Sri Nalini Ranjan Sarkar on 5th February, 1951, with accused No. 2 as attesting witness both for the transferor and transferee. (c) Minutes of the proceedings of the Board. Meetings of the said N. R. Sarkar Company Limited including those of a meeting dated 16th January, 1948, purporting to bear the signature of the aforesaid late Sri Nalini Ranjan Sarkar. These documents, it is alleged, are forged and have been used and by the use of these forged documents a fraud has been perpetrated. On April 3, 1959, respondent filed in the Court of the Chief Presidency Magistrate, Calcutta, a complaint under sections 467, 471 read with s. 109 of the Indian Panel Code against the two appellants, Dr. N. N. Law and A. Chakravarti. Document No. (b) above is not the subject matter of the complaint because a suit in regard to it has been filed and is pending in the Calcutta High Court. On May 7, 1959, process was issued against the appellants by the Chief Presidency Magistrate. Before dealing with the allegations in this complaint it is necessary to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkar took a revision to the Calcutta High Court which was heard by Debabrata Mookerjee, J. Before him three contentions were raised (1) that the Chief Presidency Magistrate erred in examining the witnesses himself after he had received the result of the enquiry held by Mr. A. B. Shyam, another Magistrate, under s. 202, Code of Criminal Procedure; (2) the learned Magistrate misunderstood the scope of ss. 202 and 203 and misdirected himself by insisting upon a standard of proof which the law did not require at the initial stage when the only question was whether the process should issue or not and the third contention related to the power of revision of High Court under s. 439 when dealing with orders of a Chief Presidency Magistrate. The learned Judge held against the complainant, Pramode Ranjan Sarkar on the points that were raised before him. He held that it was open to the Chief Presidency Magistrate to examine witnesses; (2) the learned Magistrate had not misdirected himself in regard to the scope of ss. 202 and 203 and that he could dismiss the complaint if in his judgment there was no sufficient ground for proceeding. He also held that the order of Magistrate was liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der an application was made for a certificate under Art. 134(1)(c) which was dismissed but in that order this fact as to the City Exchange coming into existence in December, 1948, has been taken note of. Pramode Ranjan Sarkar then applied to this Court for Special Leave which was granted on February 13, 1956, but the appeal was withdrawn and was therefore dismissed or March 2, 1959. The present respondent Saroj Ranjan Sarkar then brought a complaint under the same sections on April 3, 1959, making the same allegations as were made by his elder brother Pramode Ranjan Sarkar but there is one further allegation as to the Telephone City Exchange which did not find place in the previous complaint, In this complaint after referring to the facts which have been set out above it was alleged in paragraph 5 as follows :- That in order to assume complete control over N. R. Sarkar Co., Ltd. and the concerns under its Managing Agency, the accused, entered into a criminal conspiracy with each other and others unknown, to dishonestly and fraudulently forged a Deed of Agreement, a Deed of Transfer and make a false document, to wit, minute book of N. R. Sarkar Co. Ltd., and in pursuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nephew. In paragraphs 1 to 7 of this affidavit he stated that the facts in regard to the Calcutta City Exchange were matters of public history as they were duly published in the columns of statesman dated December 29, 1948, and he also stated that I am aware of the facts and circumstances stated above, but he did not say as to when he came to know about the City Exchange matter. It may also be noted that in the application which was made by the complainant Pramode Ranjan Sarkar in the High Court before Debabrata Mookarjee J., it was submitted that judicial notice be taken of the new telephone exchange under s. 57 but it was not stated as to when that complainant came to know about the new Telephone Exchange Number. That fact has been stated in the affidavit of Shanti Ranjan Sarkar in almost the same vague manner. The learned Chief Presidency Magistrate, who took cognizance of the second complaint, Mr. Bijoyesh Mookerjee, after considering the whole material placed before him issued process against the appellants only. He held that there was no delay on the part of the respondent in making the complaint that the previous complaint and the result thereof was no bar to the fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to refer the case to a larger bench and therefore the reference was not illegal. In regard to the filing of a second complaint it held that a fresh complaint could be entertained after the dismissal of previous complaint under s. 203 Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming. The Bench was of the opinion that the fact in regard to the City Telephone Exchange was a new matter and because Pramode Ranjan Sarkar was not permitted to take a photostat copy of the Minutes Book, it was possible that his attention was not drawn to the City Telephone Exchange which was not in existence at the relevant time and that there was sufficient reason for Pramode Ranjan Sarkar for not mentioning the matter of City Exchange in his complaint. It also held that the previous Chief Presidency Magistrate Mr. Chakraborty had altogether ignored the evidence of a large number of witnesses who were competent to prove the handwriting and signature of N. R. Sarkar and he had no good reasons for not accepting their evidence. It could not be said therefore that there was a judicial enquiry of the matter before the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are ss.200, 202 and 203. Section 200 deals with examination of complainants and ss. 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of ss. 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Chadigaonker(1). The scope of enquiry under s. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and s. 203 lays down what materials are to be considered for the purpose. Under s. 103 Criminal Procedure Code the judgment which 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 materials and from 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 s. 202, Criminal Procedure Code, and has judicially applied him mind to the material before him and then proceeds to make his order it cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the signatures of Mr. N. R. Sarkar. Taking first the question of fresh evidence, the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is, in our opinion, a correct view of the law. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on. That in our opinion, is not a correct view of the law. The next point to be considered is, was the mention of the telephone number City 6091 on the note paper on which the resolution was typed a matter of which the previous complainant Pramode Ranjan Sarkar was unaware and was it a fact which with reasonable diligence he could not place before the Magistrate. In the complaint filed by Pramode Ranjan Sarkar no reference was made to the City Exchange. It is true that the question was sought to be raised as a fresh piece of evidence before Debabrata Mookerjee, J. and it was not considered by him but it was not stated before him when the then complainant came to know of this fact. According to a copy of the Day Book entry by Mr. Bimal Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only protest made against it by Pramode Ranjan Sarkar was the alleged legal difficulties consequent on renewal of the appointment but its genuineness was not then questioned and it was questioned for the first time on March 17, 1954, when the complaint was lodged. Against the judgment and order of Debabrata Mookerjee J., Special Leave to appeal to this Court was obtained and one of the points taken in the application was that the resolution was typed on a sheet of paper bearing Telephone No. City 6091 although this Telephone Exchange did not come into existence till December 28, 1948. It is significant that Pramode Ranjan Sarkar did not mention when he came to know about the existence of this new fact. It was not, therefore, made clear to the learned Judge at least upto that stage as to when, before or after the filing of the first complaint Pramode Ranjan Sarkar came to know about the existence of this piece of evidence to which so much importance is attached. Debabrata Mookerjee, J., also said in his judgment that the affairs of the Company were managed by Pramode Ranjan Sarkar and the appellant P. N. Taluqdar and that it was difficult to believe that he (Pramode Ranjan) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to when the matter of City Exchange came to be known to the persons who were then and two those who are now prosecuting the criminal complaints. The document which we have referred to above i.e., the letter written by the Solicitor dated October 13, 1953 shows that Santi Ranjan Sarkar was present as agent of Pramode Ranjan Sarkar at the time of the inspection. The complaint filed by Saroj Ranjan Sarkar states:- That with great difficulty the documents in question were inspected, certified true copies of the alleged resolutions of the Board meetings were obtained and photostatic copies of material portions including alleged signatures of late Sri Sarkar on the said Deed of Agreement and on the Deed of Transfer could be obtained, as will appear from correspondence in this respect. In the complaint filed by Pramode Ranjan Sarkar exactly the same language was used in paragraph 10 of the previous complaint. If certified copies were obtained by the complainant Pramode Ranjan Sarkar and inspection was taken by Santi Ranjan Sarkar for Pramode Ranjan Sarkar and by his Solicitor and the facts are as they are stated above, it is difficult to hold that the fact in regard to the City ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the resolution of the Board of Directors dated January 16, 1948 also was not forged and that the endorsement of the appellant S. M. Basu, was nothing more or less then the authentication of the common seal of the Co., and he, therefore, agreed with the finding of Mr. A.B. Syam that there was no case against S. M. Basu, appellant but disagreed with him in regard to the other appellant, P. N. Talukdar. When the matter went to the High Court, Debabrata Mookerjee, J., first considered as to when the revisional power of Court to interfere should be exercised. Then he discussed the seven circumstances which were relied upon by the then complainant Promode Ranjan Sarkar in support of the allegations of forgery. After dealing with these various points raised he held:- It may be that one or two items of evidence were not specifically referred to in the Order but that does not necessarily imply that those items of evidence were not present to the mind of the Magistrate. After all a Magistrate is only required to record briefly his reasons for dismissing a complaint. The Magistrate s order, I think, is fairly well. The learned Judge then discussed the question of delay and held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 202 and 203 of the Criminal Procedure Code nor is the order contrary to what was said in Ramgopal Ganpatrai Ruia v. State of Bombay (3). That was a case in which the rule in regard to the commitment proceedings and the power of the Committing Magistrate to commit was discused and the expression sufficient grounds in ss. 209, 210 and 213 of the Code of Criminal Procedure was interpreted. That was not a case dealing with the powers of the Magistrate under ss. 202 and 203 which was specifically raised and decided in Vadilal Panchal s case (3). In Ramgopal Ganpatrai Ruia s case (3) the following observations of Sinha J., (as he then was) in regard to the expression sufficient grounds are pertinent: The controversy has centred round interpretation of the words sufficient ground , occurring in the relevant sections of the Code, set out above. In the earliest case of Lachman v. Juala (1882) I.L.R 5 All. 161, decided by Mr. Justice Mahmood in the Allahabad High Court, governed by s. 195 of the Criminal Procedure Code of 1872 (Act No. X of 1872), the eminent judge took the view that the expression sufficient grounds has to be understood in a wide sense including the power of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed both by the Magistrate and the High court. Appeal against the order of dismissal brought in this court was withdrawn on March 12, 1959. It was alleged in his complaint by Pramode Ranjan Sarkar that the present respondent was celluding with appellant, P. N. Talukdar, who had offered his some kind of monetary inducement and that fact was deposed to by the present respondent himself as a witness in the previous complaint. He waited all this time although he knew about the forged signatures of his late brother on various documents and after at least the lapse of five years he brought a fresh complaint on the same facts. Neither he has disclosed as to when he came to know about the City Exchange nor have Santi Ranjan Sarkar and Pramode Ranjan Sarkar, which cannot therefore be said to be a fact which could not with reasonable diligence be adduced at the time of the previous complaint. The argument that this Court gave Special Leave in the case of Pramode Ranjan Sarkar and therefore there were points of importance is, in the circumstances of this case, a neutral circumstance and that fact cannot be used as a point in favour of the respondent. In these circumstances, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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