S.K. Das JUDGMENT
S.K. Das, J.
1. I regret that I have come to a conclusion different from that of my learned brethren in these appeals. I proceed now to state the necessary facts, the arguments advanced before us and my conclusions on the various questions urged.
2. By an order dated April 10, 1961 this Court granted special leave asked for by the two appellants herein, Pramatha Nath Talukdar and Saurindra Mohan Basu, to appeal to this Court from two orders made by the High Court Calcutta, one dated December 22/23, 1960 and the other dated March 17, 1961. By the first order a Special Bench of the Calcutta High Court dismissed two applications in revision which the appellants 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 Sections 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 of 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.
3. 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 The two appeals numbered 76 and 78 of 1961 from the order dated March 17, 1961 were withdrawn on the ground that special leave having been granted against the order of the Special Bench dated December 22/23, 1960, the appellants did not wish to press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 appeals from the later order dated March, 17, 1961. Therefore, the present judgment relates to the two appeals numbered 75 and 77 of 1961 which are from the judgment and order of the Special Bench dated December 22/23, 1960.
4. The principal question which arises for decision in these two appeals is whether a second complaint can be entertained by a Magistrate who or whose predecessor had, on the same or similar allegation, dismissed a previous complaint, and if so in what circumstances should such a second complaint be entertained. The question is one of general importance and has given rise to some divergence of opinion in the High Courts.
5. Let me first state the facts which have led to the filing of the second complaint in the present case. Saroj Ranjan Sarkar, who is the youngest brother of the late Nalini Ranjan Sakar - a well-known public man, financier and industrialist of Bengal-filed a petition of complaint in the court of the Chief Presidency Magistrate, Calcutta. On April 3, 1959, I do not pause here to state the allegations made in that petition, as I shall have occasion to refer to them in detail later on. The complaint was filed against four persons - the appellants herein and two other persons, Narendra Nath Law and Amiya Chakravarty. A previous complaint on more or less the same allegations was made by Promode Ranjan Sarkar, second brother of the late Nalini Ranjan Sarkar. That complaint was made on March 17, 1954 and was dismissed under s. 203 of the Code of Criminal Procedure by the then Chief Presidency Magistrate, Shri N. C. Chakravar........