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2002(8) Supreme 615
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
M.B. Shah, D.M. Dharmadhikari & S.B. Sinha, JJ.
Mahesh Chand -Appellant
versus
B. Janardhan Reddy & Anr. -Respondents
Criminal Appeal No. 1276 of 2002
(Arising out of SLP (Crl.) No. 13 of 2002)
Decided on 4-12-2002
Counsel for the Parties :
For the Appellant : P.S. Narasimha, Ananga Bhattacharya and Sridhar P., Advocates for M/s. P.S.N. & Co.
For the Respondents : K. Ramakrishna Reddy, Sr. Advocate, K. Maruthi, Mrs. K. Radha, Mrs. Anjani, Aiyagari and Guntur Prabhakar (N.P.), Advocates.
Held : There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. (Para 12)
Yet again in Bindeshwari Prasad s case (supra), this Court followed Pramatha Nath Taluqdar s case (supra) holding:-
"...it is now well-settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out..." (Para 16)
Held thereafter : 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 Sec. 204 Cr. P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Taluqdar s case (supra) 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 20)
Held consequently : For the reasons aforementioned, the impugned order of the High Court is set aside. The matter shall now go back to the learned Magistrate who shall consider the matter afresh in the light of the observations made hereinbefore. This appeal thus stand disposed of. In the facts and circumstances of the case, there shall be no order as to costs. (Paras 21 and 22)
JUDGMENT
S.B. Sinha, J.-Leave granted.
2. The complainant is the appellant herein. He lodged a First Information Report against the respondent on 19th July, 1997, alleging, inter alia, therein that a sale-deed and acknowledgment purported to have been executed by him were forged and fabricated documents and the respondent wrongfully trespassed into the lands bearing Survey Nos.100/1 and 101/1 situate at Serlingampaly in the District of Ranga Reddy, Andhra Pradesh. The Forensic Science Laboratory to whom the said sale-deed and acknowledgment were sent for a scientific opinion allegedly in its opinion dated 31st October, 1997 stated that the said sale-deed and acknowledgement were forged documents.
3. However, in the meanwhile being not satisfied with the investigation carried out by the police authorities, he filed a criminal complaint in the Court of the Additional Judicial First Class Magistrate, (West and South), Saroornagar in the District of Ranga Reddy against the respondent herein, alleging commission of offences under Sections 420, 426, 447 and 448 of the Indian Penal Code. It is admitted that two civil suits are also pending between the parties. The Investigating Officer, however, upon investigation of the matter came to the conclusion that the dispute between the parties was a civil dispute. He also arrived at a conclusion that the appellant herein had executed the acknowledgment. A case disposal report on the said basis was filed before the learned Magistrate.
4. The appellant herein on or about 2nd September, 1998 filed a protest petition.
5. The case disposal report filed by the police was accepted by the learned Magistrate. The complaint case filed by the appellant was also closed. The said order has not been questioned by the him.
6. On or about 8th November, 2002, a third complaint was filed by the appellant herein purported to be under Section 200 of the Code of Criminal Procedure whereupon summons were issued upon the respondent.
7. Questioning the said order, the respondent filed an application under Section 482 of the Code of Criminal Procedure before the High Court of Judicature at Andhra Pradesh which was marked as Criminal Petition No. 591 of 1999. By reason of the impugned judgment dated 31st August, 2001, a learned Single Judge of the High Court held that having regard to the police report in Cr.No. 206 of 1997 dated 29th July, 1997 that the dispute between the parties was of civil in nature and further having regard to the dismissal of the protest petition filed by the appellant herein on 2nd September, 1998, a fresh complaint on the self same allegations, was barred.
8. Mr. P.S. Narasimha, the learned counsel appearing on behalf of the appellant in support of the appeal, would, inter alia, submit that the High Court committed a manifest error in arriving at the said conclusion as there does not exist any legal bar in filing a second complaint. Strong reliance, in this connection, has been placed on a judgment of the Patna High Court in Munilal Thakur & Ors. etc. v. Nawal Kishore Thakur & Anr. [1985 Crl.L.J.437] and a decision of a learned Single Judge of the Orissa High Court in The District Manager, Food Corporation of India, Titilagarh v. Jayashankar Mund & Anr. [1989 Crl.L.J. 1578].
9. Mr. Ramakrishna Reddy, learned Senior Counsel appearing on behalf of the respondent, on the other hand, would submit that the criminal complaint filed by the appellant herein was a verbatim reproduction of his earlier complaint petition and in that view of the matter unless a special case was made out, the learned Magistrate could not have entertained the said criminal contempt nor could issue processes upon the respondent relying on the basis thereof.
10. Strong reliance, in this connection, has been placed on Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [(1962) Supp. 2 SCR 297] and Bindeshwari Prasad Singh v. Kali Singh [(1977) 1 SCR 125].
11. The learned counsel sought to place before us an authenticated copy the said co
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