P.P. Koya and ors. Vs. the State of West Bengal and anr.

P.P. Koya and ors. vs The State of West Bengal and anr.

Disposition Petition dismissed Court Kolkata Decided Apr 26, 2010

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Citation: sooperkanoon.com/902908
Court: Kolkata High Court
Judge: Ashim Kumar Roy, J.
Decided On: Apr 26, 2010
Case Number: C.R.R. No. 588 of 2010
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Indian Penal Code (IPC) - Section 380; ;Code of Criminal Procedure (CrPC) - Sections 204 and 245(2)

Parties & Advocates

Appellant / Petitioner

P.P. Koya and ors.

Advocate Pratip Chatterjee, Adv.

Respondent

The State of West Bengal and anr.

Legal References

Acts: Indian Penal Code (IPC) - Section 380; ;Code of Criminal Procedure (CrPC) - Sections 204 and 245(2)
Cases Referred: Mahesh Chand v. B. Janardhan Reddy and Anr.

Excerpt

.....dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a..........a complaint is dismissed not on merit but on default of the complainant, i.e. due to his failure to appear in court or being represented by his lawyer or when a complaint is dismissed without assigning any reason, a second complaint on same set of facts is always legally maintainable.5. in the case of jatinder singh and ors. v. ranjit kaur reported in 2001 (2) scc 570, the apex court in paragraph 14 held as follows;as the magistrate did not consider the materials on record when he dismissed the first complaint, instead the said course was adopted by him only as a consequence of the default of the complainant presenting herself when the case was called, there is no reason to shut the door before her once and for all. the high court has correctly interfered with the order of the sessions court by restoring the complaint and the proceedings initiated thereon. we therefore dismiss the appeal. (para 14)similarly, in the case of mahesh chand v. b. janardhan reddy and anr. reported in : 2003 (1) scc 734, a three judges bench of the apex court, further held;keeping in view the settled legal principles, we are of the opinion that the high court was not correct in holding that the second complaint was completely barred. it is settled law that there is no statutory bar in filing a second complaint on the same facts. in a case where a previous complaint is dismissed without assigning any reasons, the magistrate under section 204 cr pc may take cognizance of an offence and issue process if there is sufficient ground for proceeding. as held in pramatha nath talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or.....

Full Judgment

Ashim Kumar Roy, J.

1. The present petitioner an accused in a case instituted on a complaint relating to an offence punishable under Section 380 of the Indian Penal Code, has now moved this Court for quashing of the same, on the sole ground that earlier a complaint containing the same set of allegations was dismissed by the Court below.

2. Heard the learned advocate appearing on behalf of the parties. Considered the materials on record.

3. Having regards to the averment made in the impugned complaint it is an admitted position earlier a complaint case based on same set of allegations, as that of the impugned complaint instituted at the behest of the opposite party against the petitioners was dismissed as no step was taken by the complainant. The said order of dismissal being Annexure 'P-2' to this criminal revision is read as follows;

Order No. Date: 13.02.09/

Today is fixed for evidence. The complt. taken no step. All the four accused persons are preset by filing attendance. On repeated calls none moves the case for the complainant. Hd. The defence.

The Complt. is also found absent on call. The complt. is least interested to proceed with this case against the accused persons. It is now 11.40 a.m.

Hence, it is

ORDER

that all the (4) accused persons are discharged Under Section 245 (2) Cr.P.C.

They are also discharged from their respective bail bonds.

Sd/- S.K. Meyur

Judicial Magistrate, 1st Court, Jangipur, Msd.

4. It is well settled when a complaint is dismissed not on merit but on default of the complainant, i.e. due to his failure to appear in Court or being represented by his lawyer OR when a complaint is dismissed without assigning any reason, a second complaint on same set of facts is always legally maintainable.

5. In the case of Jatinder Singh and Ors. v. Ranjit Kaur reported in 2001 (2) SCC 570, the Apex Court in paragraph 14 held as follows;

As the Magistrate did not consider the materials on record when he dismissed the first complaint, instead the said course was adopted by him only as a consequence of the default of the complainant presenting herself when the case was called, there is no reason to shut the door before her once and for all. The High Court has correctly interfered with the order of the Sessions Court by restoring the complaint and the proceedings initiated thereon. We therefore dismiss the appeal. (Para 14)

Similarly, in the case of Mahesh Chand v. B. Janardhan Reddy and Anr. reported in : 2003 (1) SCC 734, a three Judges Bench of the Apex Court, further held;

Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Cr PC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not. (Para 19)

6. Moreover, the first complaint was dismissed in purported exercise of power under Section 245(2) of the Code of Criminal Procedure. According to the provisions of Section 245(2) of the Code, a Court can always dismiss a complaint even before the recording of evidence before charge, if Court finds, the charges are to be groundless. However, in the case at hand, the earlier complaint was never dismissed on a finding the complaint was groundless but as a consequence of default of the complainant and his lawyer to be present in Court. Neither any reason has been assigned nor such dismissal was on merit.

This criminal revision has no merit and accordingly stands dismissed. Interim order, if any, stands vacated.

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.

Same Court & Year Kolkata · 2010 Same Parties P.P. Koya and ors. vs The State of West Bengal and anr. Same Subject Criminal Same Judge Ashim Kumar Roy, J. Acts & Sections Indian Penal Code (IPC) - Section 380; ;Code of Criminal Proc...

Criminal