2010(1) Crimes 333 (A.P.)
ANDHRA PRADESH HIGH COURT
G. Bhavani Prasad, J.
Perugu Gopinath Reddy and Ors. —Petitioners
versus
Smt. P. Sushmitha and Anr. —Respondents
Criminal P. No. 3345 of 2009
Decided on 20.7.2009

IMPORTANT POINT
In a case where second complaint on same set of facts is filed true test for its maintainability is not so much whether the facts are the same in both trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction on the second charge.

Headnote:Criminal Procedure Code, 1973—Section 300(4)—Private complaint for offences under Section 406, 420 IPC and under Section 3(1)(x) and (xi) of Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act referred for investigation under Section 156(3) Cr.P.C. by Magistrate—Complaint was on same set of facts in which policed had filed charge-sheet against petitioners in earlier FIR only for offence under Section 498A IPC and advised complainant to prosecute her remedy for offence under SC and ST Act separately in law—Sustainability of crime in second complaint in light of earlier charge-sheet covering same set of facts—True test in such cases is not so much whether facts are same in both trials as whether acquittal or conviction from first charge necessarily involves an acquittal or conviction on second charge—Legal right of complainant to complain against offences covered by her second complaint and pursue same to its logical conclusion could not be negatived.

       Held: The question herein is about the sustainability of Crime No. 65 of 2009 in the light of C.C. No. 390 of 2008 covering the same set of facts. Section 210 of the Code of Criminal Procedure provides no answer to such a situation as it is concerning the procedure to be followed in respect of a complaint and police investigation in respect of the same offence and the offences herein are different and distinct with C.C. No. 390 of 2008 concerning an offence punishable under Section 498A of the Indian Penal Code, while Crime No. 65 of 2009 is concerning the offences punishable under Sections 406 and 420 of the Indian Penal Code and Section 3(1)(x) and (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 respectively. A perusal of various provisions of the Code of Criminal Procedure, 1973 and the Criminal Rules of Practice and Circular Orders did not indicate such a situation to be specifically covered by any provision, and as laid down by the Apex Court in the two decisions referred to above, either the jurisdiction of the Magistrate to order registration of first information report and investigation into it by the police under Section 156(3) of the Code of Criminal Procedure or the applicability of Section 210 of the Code of Criminal Procedure to cases where the basic tenor and the prosecution version in two cases are quite different, cannot be in doubt.

       While it could have been appropriate and reasonable that all the offences arising out of the same sequence of events could have been investigated into and prosecuted together in one case, the Court is presented with a fait accompli where in C.C. No.390 of 2008 the accused were being prosecuted only in respect of an offence which the investigating officer therein was competent to investigate and the aggrieved de facto complainant was left to pursue her remedies in accordance with law in respect of the offences alleged to have been committed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. While it is another matter that the de facto complainant took advantage of such advice to file a private complaint including the alleged offences under Sections 406 and 420 of the Indian Penal Code also, the de facto complainant could not have been left without any remedy merely because of the impropriety in the advice of the earlier investigating officer.

       Section 300 sub-section (4) of the Code of Criminal Procedure appears to throw light on the legislative intent and statutory policy that should govern such situations. (Paras 11 to 13)

       In the present case, C.C. No. 390 of 2008 was on the investigation conducted by an officer not competent to investigate, ‘the offence under the Special Statute and the offence was taken cognizance and the case is pending trial before a Court (IX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, which is not a Special Court under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.Only a Court of Session specified by a Gazette notification to be a Special Court to try the offences under the Act is competent to try the offences under the Special Statute and for consequently, on the principle of sub-section (4) of Section 300 of the Code of Criminal Procedure, the IX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and the investigating officer who invoked the jurisdiction of that Court being incompetent vis-a-vis the Special Statute, the offence under the Special Statute constituted by the same acts/facts clearly appears to be open to investigation by an officer competent to investigate under the Special Statute and further open to cognizance and trial before a Special Court under the Special Statute, if appropriately brought before it in accordance with the prescribed procedure. (Para 16)

       Though undoubtedly, the petitioners herein suffer inconvenience expense, stress, trouble and the possibility of adverse verdict twice over for the same set of facts which could have been avoided if the first complaint from the 1st respondent itself was comprehensively investigated into by a police officer competent to do the same and prosecuted before a court of competent jurisdiction at the same time, the legal right of the 1st respondent to complain against the offences covered by her second complaint and pursue the same to its logical conclusion, cannot be negatived or nullified on any such equitable considerations. As equities can only supplement and not override legal rights and liabilities the further proceedings in crime No. 65 of 2009 do not appear to be susceptible to any quashing in exercise of the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, which can be invoked only in rarest of rare cases that too with great care, caution and circumspection as repeatedly emphasized by the Apex Court. (Para 22)

       Result: Petition dismissed.