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SUPREME COURT OF INDIA
C.T. Ravikumar, Rajesh Bindal, JJ.
Subrata Choudhury @ Santosh Choudhury & Ors. – Appellant
Versus
The State of Assam & Anr. – Respondent
Criminal Appeal No. 4451 of 2024 (Arising out of SLP (Crl.) No.1242 of 2021)
Decided On : 05-11-2024
Criminal Procedure Code, 1973 – Section 300(1) [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 337(1)] – Person once convicted or acquitted not to be tried for same offence – There can be no blanket bar for filing a second complaint on same set of facts – Disapproval against final report submitted in a case investigated by police on FIR registered pursuant to forwarding of complaint under Section 156(3), Cr.P.C., for investigation should be treated as complaint only if same satisfies requirement in law to constitute complaint as defined under Section 2(d), Cr.P.C. – If while praying for rejection of final report after reiterating allegations made in original complaint and prayer for further action by court, same could be treated as fresh complaint, but its maintainability depends upon question as to how original/protest petition was disposed of – Even when Final Report filed after investigation based on FIR registered pursuant to receipt of complaint forwarded by a Court for investigation under Section 156 (3) of Cr.P.C., is accepted and protest petition thereto is rejected, Magistrate can still take cognizance upon a second complaint or second protest petition, on same or similar allegations or facts – But this position is subject to conditions – Merely because Supreme Court in some of such decisions held that when Magistrate conducted inquiry under Section 202 Cr.P.C., and dismissed complaint on merits, second complaint on same facts would not be maintainable unless there are very exceptional circumstances, it could not be understood that in all cases where complaint to Magistrate was not proceeded under Section 202 of Cr.P.C., and dismissed not at stage of Section 203, Cr.P.C., second complaint or second protest petition would be maintainable – Complaint rejected as not maintainable – Appeal allowed. (Paras 10, 11, 17, 23, 31 and 34)
Facts of the case:
An affirmative answer to the question of law raised before the High Court as to whether after acceptance of a negative Final Report filed under Section 173 of Code of Criminal Procedure, 1973, upon considering the written objection/ protest petition and hearing complainant, a fresh complaint on the same set of facts is maintainable.
Findings of Court:
Understanding of the settled position in regard to the maintainability of a second complaint or second protest petition of the High Court, as reflected mainly in paragraph 20 of the impugned judgment is not true to the position settled by this Court.
Result : Appeal allowed.
A protest petition (also referred to as a narazi petition) is a written objection or expression of disapproval filed by a complainant against a negative final report submitted by the police under Section 173 Cr.P.C. following investigation of an FIR. (!) (!) (!) It challenges the final report's conclusions, often alleging improper or perfunctory investigation, and may seek rejection of the report. (!) (!) (!)
Such a petition qualifies as a "complaint" under Section 2(d) Cr.P.C.—thereby enabling the Magistrate to take cognizance under Section 190 Cr.P.C.—only if it contains: - An oral or written allegation that a person (known or unknown) has committed an offence; - Made to a Magistrate; and - Intended to prompt action by the Magistrate (e.g., by reiterating the original allegations from the complaint that led to the FIR under Section 156(3) Cr.P.C. and praying for further proceedings, such as taking cognizance). (!) (!) (!) (!) (!) (!)
If it merely prays for rejection of the final report without satisfying these elements, it does not constitute a complaint and cannot trigger further inquiry under Sections 200 or 202 Cr.P.C. (!) (!) (!) (!) Upon receipt of a negative final report, the Magistrate may: - Accept the report and reject the protest petition (as occurred here after hearing the complainant); (!) (!) - Direct further police investigation; - Conduct or direct inquiry under Section 159 Cr.P.C.; or - Treat it as a complaint under Section 200 Cr.P.C. if materials suffice. (!) (!) (!) (!)
A subsequent complaint or second protest petition on the same facts after acceptance of the final report and rejection of the protest petition is generally not maintainable, absent exceptional circumstances (e.g., incomplete record, new facts not reasonably discoverable earlier, or manifestly unjust prior order). (!) (!) (!) (!) (!) (!) (!) (!) Here, the first protest petition (dated 05.05.2011) was rejected as not qualifying as a complaint, rendering the later filing (20.07.2011) a non-maintainable second complaint on identical facts. (!) (!) (!) (!) (!) (!) (!) (!)
JUDGMENT
C.T. RAVIKUMAR, J.
Leave granted.
1. An affirmative answer to the question of law raised before the High Court as to whether after the acceptance of a negative Final Report filed under Section 173 of the Code of Criminal Procedure, 1973 (for short, the ‘Cr.P.C.’), upon considering the written objection/ protest petition and hearing complainant, a fresh complaint on the same set of facts is maintainable, by the High Court of Gauhati and the consequential confirmation of the order of the learned Additional Sessions Judge, Cachar, Silchar in Criminal Revision Petition No.101/2012, as per judgment and order dated 08.01.2021 in Criminal Revision Petition No.95/2013 is under challenge in this appeal by special leave. As per the said judgment dated 08.01.2021, the High Court dismissed the revision petition and confirmed the order of the learned Additional Sessions Judge dated 28.02.2013 in Criminal Revision Petition No.101/2012 whereunder the order dated 12.07.2012 of the learned Chief Judicial Magistrate, Cachar, Silchar dismissing the complaint filed by the second respondent herein was set aside and case was remanded for consideration of the matter afresh for the purpose arriving at a finding as to whether any case for taking cognizance of the alleged offence(s) and for issuance of process has been made or not.
2. Facts and circumstances giving rise to the captioned appeal, in succinct, are as under: -
The second respondent herein filed a complaint on 11.11.2010 before the Chief Judicial Magistrate, Cachar, Silchar and it was forwarded for investigation under Section 156 (3) Cr.P.C. Consequently, on 05.12.2010, FIR No.244/2010 under Sections 406, 420 read with Section 34 of the Indian Penal Code, 1860 (for short the ‘IPC’) was registered at Dholai Police Station against the appellants. On completion of the investigation, Final Report under Section 173, Cr.P.C., was filed before the learned Magistrate on 28.02.2011. Virtually, it was a negative report as can be seen from Annexure-P3 – Final Report No.11 of 2011 dated 28.02.2011. Aggrieved by the said Final Report, the complainant filed a written objection/narazi petition on 05.05.2011, alleging that the investigation was not conducted properly and praying for taking cognizance on it. As per order dated 06.06.2011, the learned Chief Judicial Magistrate (CJM) accepted the Final Report, after hearing the second respondent-complainant and considering the narazi petition, upon holding that the investigation did not suffer from any infirmity. On 20.07.2011, the second respondent filed the second complaint with the same set of allegations against the appellants and the others who were shown as accused in the first complaint, before the learned CJM alleging commission of offence under the very Sections viz., 406, 420 and 34 IPC, and the same was numbered as C.R. No.159 of 2011. On 19.09.2011, as per Annexure P-7 order, the learned CJM exercising the power under Section 202 Cr.P.C., directed an investigation after recording the initial deposition of the complainant and the statements of the witnesses. Feeling aggrieved by the said order of the learned CJM dated 19.09.2011, the appellant(s)/accused preferred a Criminal Revision Petition before the High Court. As per Annexure P-8 order dated 24.05.2012, the High Court set aside the order of the learned CJM and directed the appellants herein to file an appropriate application raising the question of maintainability of the second complaint viz., C.R. No.159 of 2011.
3. Pursuant to the order dated 24.05.2012, the learned CJM considered the application filed by the appellants raising the question of maintainability of the second complaint and dismissed the second complaint holding it not maintainable in law. Against the said order of the CJM dated 12.07.2012, the second respondent- complainant filed Criminal Revision Petition No.101 of 2012. The learned Sessions Judge allowed the said Criminal Revision Petition as per Annexure P-10 order dated
Person once convicted or acquitted not to be tried for same offence – There can be no blanket bar for filing a second complaint on same set of facts – Disapproval against a final report submitted in ....
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The main legal point established is that a second complaint on the same allegations can only be entertained in exceptional circumstances and when the core of both complaints is not the same.
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