2010 Supreme(SC) 110

2010 (1) Supreme 599
SUPREME COURT OF INDIA
G.S Singhvi and Asok Kumar Ganguly, JJ.
Poonam Chand Jain and Another — Appellant(s)
versus
Fazru — Respondent(s)
Criminal Appeal No.203 of 2010
(@ Special Leave Petition (CRL.) No.1812 of 2009 )
Decided on : 28-01-2010

IMPORTANT POINT
There is no provision in the Code or in any other statute which debars complainant from filing a second complaint on the same allegation as in the first complaint. But when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts can not be made unless there are ‘exceptional circumstances.

Headnote:Criminal Procedure Code,1973-Sections 203,204- Second complaint on identical facts -Maintainability of-An order of dismissal under Section 203 of Code’ is, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances- Exceptional circumstances are where the previous order was passed on incomplete record,or on a misunderstanding of the nature of complaint or the order which was passed was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, had been brought on record in the previous proceedings-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-Fresh evidence or fresh facts must be such which could not with reasonable diligence had been brought on record- It cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence-Such a course is not permitted on a correct view of the law (Para 23)

       AIR 1962 SC 876), Relied

        Criminal Procedure Code,1973-Sections 203,204- Second complaint on identical facts -Maintainability of –Issue in consideration that if Order of dismissal of complaint has attained finality, whether complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal-Second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits- Hence held that second complaint was not maintainable-Core of both the complaints was the same- Nothing had been disclosed in the second complaint which was substantially new and not disclosed in first complaint- No case made out that even after the exercise of due diligence the facts alleged in the second complaint were not within application of the first complaint-. In fact such a case could not be made out since the facts in both the complaints were almost identical- Hence held that second complaint was not covered within exceptional circumstances explained in case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - In that view of the matter second complaint in the facts of case, held not maintainable-Unfortunately High Court fell into an error in not appreciating the legal position in its correct perspective while allowing revision petition of respondent- The order passed by High Court in revision jurisdiction held unsustainable-Appeal allowed (Paras 27, 28)

       Facts of the Case :

        Issue in consideration in present case was whether after an order of dismissal of complaint has attained finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal.

       Findings of the Court :

        An order of dismissal under Section 203 of Code’ is, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. Exceptional circumstances are where the previous order was passed on incomplete record,or on a misunderstanding of the nature of complaint or the order which was passed was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, had been brought on record in the previous proceedings. 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. Fresh evidence or fresh facts must be such which could not with reasonable diligence had been brought on record. It cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. Such a course is not permitted on a correct view of the law. In the instant case nothing had been disclosed in the second complaint which was substantially new and not disclosed in first complaint. No case was made out that even after the exercise of due diligence the facts alleged in the second complaint were not within application of the first complaint. In fact such a case could not be made out since the facts in both the complaints were almost identical. Hence held that second complaint was not covered within exceptional circumstances explained in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar .In that view of the matter second complaint in the facts of case, held not maintainable.Unfortunately High Court fell into an error in not appreciating the legal position in its correct perspective while allowing revision petition of respondent. The order passed by High Court in revision jurisdiction was held unsustainable. Appeal was allowed

       Result : Appeal allowed