Supreme Court of India
Subrata Choudhury @ Santosh Choudhury vs The State Of Assam on 5 November, 2024
Author: C.T. Ravikumar
Bench: Rajesh Bindal, C.T. Ravikumar
2024 INSC 834
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. of 2024
(Arising out of SLP (Crl.) No.1242 of 2021)
Subrata Choudhury @ Santosh
Choudhury & Ors. …Appellant(s)
Versus
The State of Assam & Anr. …Respondent(s)
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
Signature Not Verified
Digitally signed by
High Court of Gauhati and the consequential
VARSHA MENDIRATTA
confirmation of the order of the learned Additional
Date: 2024.11.05
15:34:21 IST
Reason:
SLP (Crl.) No.1242 of 2021 Page 1 of 40
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 SectionSLP (Crl.) No.1242 of 2021 Page 2 of 40
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
SLP (Crl.) No.1242 of 2021 Page 3 of 40
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 28.02.2013 and set aside the order of the CJM and
remanded the case for reconsideration of the matter
afresh for the purpose of finding whether any case for
taking cognizance of the alleged offences and issuance
SLP (Crl.) No.1242 of 2021 Page 4 of 40
of process have been made out or not. Aggrieved by the
said order dated 28.02.2013 the appellants preferred
Criminal Revision No.95 of 2013 which was dismissed by
the High Court as per the impugned order dated
08.01.2021.
4. Heard the learned counsel for the appellants and
the learned counsel appearing for the respondents.
5. In the wake of aforesaid factual background, the
appellants, relying various decisions of this Court,
contended that the second complaint filed by the second
respondent-complainant is not maintainable. It is
contended that the High Court had failed to consider the
provisions under Section 300 (1), Cr.P.C., which resulted
in dismissal of the revision petition. Dilating the said
contentions, further grounds founded on Section 300 (1)
of the Cr.P.C., are raised.
6. Before dealing with the other contentions raised to
assail the judgment dated 08.01.2021, we think it is only
appropriate to consider the contentions raised by the
appellants founded on Section 300 (1), Cr.P.C., reads
thus: –
“300. Person once convicted or acquitted not to be
tried for same offence.—(1) A person who has once
been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall,SLP (Crl.) No.1242 of 2021 Page 5 of 40
while such conviction or acquittal remains in force, not
be liable to be tried again for the same offence, nor on
the same facts for any other offence for which a different
charge from the one made against him might have been
made under sub-section (1) of section 221, or for which
he might have been convicted under sub-section (2)
thereof.”
7. In view of the indisputable and undisputed facts,
referred hereinbefore, revealing the outcome of the first
complaint dated 11.11.2010 and taking into account the
stage of the second complaint the question is whether
Section 300 (1), Cr.P.C., is applicable or not to the case
at hand.
8. Section 300 (1), Cr.P.C., is found on the maxim
“Nemo debet bis vexari pro una et eadem causa”, which
means that no one shall be vexed twice for one and the
same cause. The Section provides that no man once
convicted or acquitted shall be tried for the same offence
again for one and the same cause. Thus, it can be seen
that in order to bar the trial in terms of Section 300 (1),
Cr.P.C., it must be shown: –
a. that the person concerned has been tried by a
competent Court for the same offence or one for
which he might have been charged or convicted at
that trial, on the same facts.
SLP (Crl.) No.1242 of 2021 Page 6 of 40
b. that he has been convicted or acquitted at the trial
and that such conviction or acquittal is in force.
9. This fundamental rule of our criminal law revealed
from this Section enables raising of the special pleas of
autrefois acquit and autrefois convict, subject to the
satisfaction of the conditions enjoined thereunder. This
position has been made clear by this Court in
Vijayalakshmi v. Vasudevan 1. In the case at hand, the
undisputed facts stated hereinbefore would reveal that
the appellants were never ever tried before a Court of
competent jurisdiction for the aforesaid offence(s) on the
basis of the aforesaid set of facts. Therefore,
indisputably there was no verdict of conviction or
acquittal in regard to the aforesaid Sections in respect of
the appellants on the aforesaid set of facts, by a Court of
competent jurisdiction. When that be the position, we
have no hesitation to hold that the grounds founded on
Section 300 (1), Cr.P.C. raised by the appellants merit no
consideration.
10. As noted at the outset, the question of law raised
before and decided by the High Court was whether after
the acceptance of the Final Report filed under Section
1
(1994) 4 SCC 656
SLP (Crl.) No.1242 of 2021 Page 7 of 40
173, Cr.P.C., upon considering the written objection/
protest petition and hearing the complainant, a fresh
complaint on the same set of facts is maintainable or not.
There can be no two views as relates the position that
there can be no blanket bar for filing a second complaint
on the same set of facts. We will deal with the moot
question and the aforesaid position a little later.
11. Firstly, the question as to what are the courses
available to a Magistrate on receipt of a negative report
is to be looked into and in fact, that question was
considered by this Court in Bhagwat Singh v.
Commissioner of Police and Anr.2 This Court held that
on receipt of a negative report, the following four
courses are open to the Magistrate concerned: –
1. to accept the report and to drop the
proceedings;
2. to direct further investigation to be made by the
police.
3. to investigate himself or refer the investigation
to be made by another Magistrate under Section
159, Cr.P.C., and2
(1985) 2 SCC 537SLP (Crl.) No.1242 of 2021 Page 8 of 40
4. to take cognizance of the offence under Section
200, Cr.P.C., as private complaint when
materials are sufficient in his opinion as if the
complainant is prepared for that course.
The indisputable position is that in the case at hand
the learned CJM on receipt of the negative report
accepted it after rejecting the written objections/protest
petition, which is one of the courses open to a Magistrate
on receipt of a negative report, in terms of Bhagwat
Singh’s case (supra).
12. In view of the confirmance of the judgment of the
learned Sessions Judge carrying the following
observations/findings it is not inappropriate to delve
into them for the limited purpose. They, in so far as
relevant, read thus:-
“(i) Thus, the present complaint in question is
truly qualify to the definition of the term
complaint and the same has been filed on being
aggrieved against the final report, submitted
against his previous complaint. Hence, in my
considered opinion the learned court below
misconstrued the definition of the term
complaint, by treating the simple objection
petition as Narazi complaint, whereas terming
the present complaint in question as second
complaint.
SLP (Crl.) No.1242 of 2021 Page 9 of 40
(ii) Situated thus, the Hon’ble Apex Court of
India, in the said decision, (referring to the
decision in Abhinandan Jha v. Dinesh Misra,
reported in AIR 1968 Supreme Court 117)
specifically observed that even after accepting
the final report, it is open to the Magistrate to
treat the respective protest petitions as
complaints and to take further proceedings in
accordance with law.”
13. According to us, the observations/findings
referred above as (i) is actually an outcome of a
misconstruction on the part of the learned Sessions
Judge. In troth, the learned CJM termed the subject
complaint dated 20.07.2011 as second complaint not with
reference to the written objection/protest petition dated
05.05.2011 and it was so treated with reference to the
original complaint dated 11.11.2010. This fact is evident
from the recitals in Annexure-P9 order dated 12.07.2012
passed by the learned CJM in complaint numbered as
Case No.159/2011, which was challenged before the
learned Sessions Judge. In the said order the learned
CJM observed and held thus:-
“After the original complaint has been duly
investigated by the police and Final Report
submitted therein has been accepted by the
Court in a Judicial Proceeding; therefore, in mySLP (Crl.) No.1242 of 2021 Page 10 of 40
considered view it cannot be re-opened by
means of filing of a second complaint in respect
of the same facts and circumstances.”In view of the afore-extracted recital from the order
dated 12.07.2012 of the learned CJM, it is evident that it
was with reference to the original complaint that he
termed the complaint filed by the second respondent on
20.07.2011 as the second complaint.
14. The second observation/finding referred above as
(ii) also requires a clarification. It is true that correctly
this Court held in the decision in Abhinandan Jha v.
Dinesh Misra3 that even after accepting the final report
it would be open to the Magistrate concerned to treat
respective protest petition as complaint and to take
further proceedings in accordance with law. Section
2(d) of the Cr.P.C. defines the term ‘complaint’. No
doubt in Cr.P.C., no form for filing complaint is
prescribed. However, the essentials to constitute a
complaint can be briefly mentioned thus: –
(i) An oral or written allegation;
(ii) That some person(s) known or unknown has
committed an offence;
3
AIR 1968 SC 117
SLP (Crl.) No.1242 of 2021 Page 11 of 40
(iii) It must be made to a Magistrate with a view to
his taking action.
15. In Bhimappa Bassappa Bhu Sannavar v. Laxman
Shivarayappa Samagouda & Ors.4, this Court, as
regards the meaning of a complaint, held thus: –
“11. The word “complaint” has a wide
meaning since it includes even an oral
allegation. It may, therefore, be assumed that
no form is prescribed which the complaint
must take. It may only be said that there must
be an allegation which prima facie discloses
the commission of an offence with the
necessary facts for the magistrate to take
action. Section 190(1)(a) makes it necessary
that the alleged facts must disclose the
commission of an offence.”
16. In the decision in Sunil Majhi v. The State5, the
Calcutta High Court in paragraph 6 held thus: –
“6. The term ‘naraji’ means ‘disapproval’
and in the context of things it signifies
disapproval of the report in relation to which
it is filed. It may simply challenge the report
on grounds stated and pray for its rejection:
it may while praying for rejection of the
report also reiterate the allegations made in
the petition of complaint and pray for further
action by the court and in that view of the4
1970 (1) SCC 665
5
AIR 1968 (Cal) 238SLP (Crl.) No.1242 of 2021 Page 12 of 40
matter it would be a fresh complaint. In the
case Jamini Kanta v. Bhabanath. AIR 1939 Cal
273, it was observed:
“The word ‘naraji’ is often loosely used and it is
necessary to examine the petition which is filed in a
particular case “to determine its true import in that
case on an examination of the petition it was found
that it was not a complaint. The reports of the cases
cited by Mr. Banerji do not contain any discussion
about the nature of the statements made in the naraji
petitions in those cases, but from the fact that the
naraji petitions were treated as complaints it would
appear that they did satisfy the requirements of a
complaint as defined in section 4(h) of the Code in
order to be a complaint the petition must contain
allegations of an offence and also a prayer for
judicial action thereon. If therefore, the protest
petition filed against an enquiry report filed or to be
filed, while lodging a protest recites also the
allegations already made and prays for action of the
court thereon, there is no difficulty in treating it as a
complaint and taking action thereon under Sections
202, 203 or 204 of the Cr PC. In the cases of Lachmi
Shaw. AIR 1932 Cal 383 (1) (Supra) and Satkari
Ghose. AIR 1941 Cal 439 (Supra) there were
complaints to the police which were found on
investigation to be false and the police submitted
final reports and at the same time prayed for
prosecuting the complainant under section 211
I.P.C. Naraji petitions were filed against the police
reports but prosecutions were launched without
considering them and it was held that the procedureSLP (Crl.) No.1242 of 2021 Page 13 of 40
followed was irregular and that the naraji petitions
should be treated as complaints and treated and
disposed of as such before the prayer for
prosecuting the complainant could be entertained.”
17. In the light of the aforesaid decisions, we are of the
view that a ‘narazi’ viz., disapproval against a final report
submitted in a case investigated by the police on a first
information report registered pursuant to the forwarding
of a complaint under Section 156(3), Cr.P.C., for
investigation should be treated as a complaint only if the
same satisfies the requirement in law to constitute a
complaint as defined under Section 2(d), Cr.P.C. As held
in Sunil Majhi’s case (supra), if while praying for
rejection of a final report after reiterating the allegations
made in the original complaint and prayer for further
action by the court, the same could be treated as a fresh
complaint, but then, we may hasten to add that its
maintainability depends upon the question as to how the
original/protest petition was disposed of.
18. It is relevant to note that in paragraph 9 of the
judgment dated 28.02.2013 (Annexure-P10), the learned
Sessions Judge after referring to the term ‘complaint,’
defined under Section 2(d) of the Cr.P.C. and taking note
of the aforesaid essentials to constitute a complaint made
SLP (Crl.) No.1242 of 2021 Page 14 of 40
a scrutiny of the written objection dated 05.05.2011
submitted by the second respondent-complainant
against the negative report dated 28.02.2011 held that
the said objection dated 05.05.2011 could not be termed
as a ‘narazi complaint’ and found that it did not qualify to
the definition of the term ‘complaint’. In that context,
with reference to the definition in Section 2(d) of the
Cr.P.C. and the essentials to constitute a complaint as
referred above, it can only be said that the said finding
of the learned Sessions Judge is perfectly in tune with the
position of law. Once that is so found and when it is a fact
that the negative report on the original complaint dated
11.11.2010 was accepted after rejecting the written
objection/protest petition dated 05.05.2011 it cannot be
said that the learned CJM has gone wrong in describing
the complaint dated 20.07.2011 as the second complaint.
The clarification required to the observation/finding
referred to as (ii), with reference to the Abhinandan
Jha’s case (supra) is that though it would be open to the
Magistrate to treat a protest petition as complaint and to
take further proceedings in accordance with law even
after accepting final report that is permissible only if the
protest petition concerned satisfies the ingredients to
constitute a complaint as defined under Section 2(d),
SLP (Crl.) No.1242 of 2021 Page 15 of 40
Cr.P.C. Since the narazi petition dated 05.05.2011 did
not satisfy the ingredients to attract Section 2(d), Cr.P.C.,
it could not be treated as a complaint as held by the
learned Sessions Judge. At the same time, in view of
what is stated above and taking note of the fact that the
allegations made in the original complaint are reiterated
in the complaint dated 20.07.2011 and pray for further
action by the court, it is rightly taken by the courts below
as a complaint. Since the final report on the original
complaint was already accepted after rejecting the
narazi petition the complaint dated 20.07.2011 which
satisfies all requirements of a complaint, if at all having
the characteristics of a protest petition, could be treated
as a complaint and hence, the learned CJM and the
learned Sessions Judge have rightly treated it as a
complaint.
19. Now, we will consider the question whether the
construction of the law laid down by this Court in regard
to the maintainability of a second complaint, in the
circumstances mentioned hereinbefore that led to the
moot question, by the High Court as reflected under
paragraph 20 of the impugned judgment and the
consequential direction can be sustained. Paragraphs
20 and 21 in the impugned judgment read thus: –
SLP (Crl.) No.1242 of 2021 Page 16 of 40
20. Evidently, the learned Magistrate did not act
upon the said protest petition, inasmuch as, the
learned Magistrate did not proceed under
Section 200/202 of the CrPC treating the same
as narazi complaint. When the learned
Magistrate did not proceed under Section 200 to
204 CrPC for taking cognizance upon received
of the first protest petition nor the protest
petition was dismissed under Section 203 CrPC,
the complaint in question though considered to
be a second narazi complaint with reference to
the first protest petition as indicated above, the
same is not barred under law, reason being that
the alleged first protest petition did not contain
detailed particulars of the case required for
decision nor the learned Magistrate proceed on
the basis of the first petition under Section
200/202 CrPC and therefore the alleged first
protest petition in my cosndiered (sic:
considered) view cannot be held to have been
dismissed after full consideration under Section
203 CrPC. Even if it is assumed for the sake of
argument that the first protest petition was
dismissed after full consideration, the narazi
complaint in question is maintainable for special
circumstances, namely the first protest petition
did not contain the full facts and particulars
necessary to decide the case and the same was
considered on incomplete facts and particulars
and the learned Magistrate also did not
examined the complainant or any witnesses
under Section 200 CrPC nor proceeded under
Section 202 CrPC to decide whether there was
sufficient ground for proceeding. Therefore, inSLP (Crl.) No.1242 of 2021 Page 17 of 40
any view of the matter, the present complaint in
question cannot be considered as second
complaint and the same also cannot be held to
be barred for acceptance of the final report.
Secondly, even if it is considered to be second
narazi complaint with reference to the first
protest petition, then also the complainant is not
barred in the facts situation of the case because
of the special on exceptional circumstances as
indicated above.
21. For the reasons stated above, this court do
not find any fault with the impugned order
passed by the learned Sessions Judge and
accordingly, the revision petition is dismissed.
The matter be remanded back to the learned
Magistrate to proceed with the complaint in
accordance with law.
20. Paragraph 21 of the impugned judgment of the
High Court, as extracted above, would reveal that the
High Court also treated the petition dated 20.07.2011
filed by the second respondent as a complaint. Since it
is filed by the second respondent after the acceptance of
the original complaint dated 11.11.2010 that too, after the
rejection of his protest petition dated 05.05.2011, there
can be no dispute regarding the status of the complaint
dated 20.07.2011 as the second complaint of the second
respondent.
SLP (Crl.) No.1242 of 2021 Page 18 of 40
21. The appellants herein contended that the second
complaint carries the same set of allegations and in view
of the dismissal of the first complaint after considering
the protest petition and hearing the complainant, the
second complaint filed by the second respondent dated
20.07.2011 is not maintainable. To buttress the said
contention, the learned counsel relied on the decisions
of this Court in Shivshankar Singh v. State of Bihar &
Anr.6, H. S. Bains v. State (Union Territory of
Chandigarh)7, Bindeshwari Prasad Singh v. Kali Singh8
and Poonam Chand Jain & Anr. v. Farzu9.
22. Per contra, the learned counsel appearing for the
second respondent/ the complainant contended that the
acceptance of the Final Report, based on the first
complaint could not be a bar for maintaining a fresh
complaint on the same set of facts. It is submitted that
virtually upon filing of the Final Report based on the first
complaint only an objection was filed by the second
respondent and therefore, it ought not to have been
taken as the first narazi complaint. At the same time, it is
further contended that even if it is taken as the first narazi
6
(2012) 1 SCC 130
7
AIR 1980 SC 1883
8
AIR 1977 SC 2432
9
(2010) 2 SCC 631
SLP (Crl.) No.1242 of 2021 Page 19 of 40
complaint, a second narazi complaint is not barred by
law. To fortify the said contention, the learned counsel
relied on the decision of this Court in Mahesh Chand v.
B. Janaradhan Reddy & Anr.10 and Shivshankar Singh’s
case (supra).
23. In view of the plethora of decisions, there can be no
doubt that even when Final Report filed after
investigation based on the FIR registered pursuant to the
receipt of complaint forwarded by a Court for
investigation under Section 156 (3) of the Cr.P.C., is
accepted and protest petition thereto is rejected, the
Magistrate can still take cognizance upon a second
complaint or second protest petition, on the same or
similar allegations or facts. But this position is subject to
conditions.
24. In Samta Naidu & Anr. v. State of Madhya Pradesh
& Anr.11, this Court considered all the relevant decisions
including Pramatha Nath Talukdar v. Saroj Ranjan
Sarkar12, Jatinder Singh v. Ranjit Kaur13, Poonam
Chand Jain v. Farzu14, and Shivshankar Singh’s case
10
(2003) 1 SCC 734
11
(2020) 5 SCC 378
12
AIR 1962 SC 876
13
(2001) 2 SCC 570
14
(2010) 2 SCC 631
SLP (Crl.) No.1242 of 2021 Page 20 of 40
(supra) in regard to the moot question involved, in
paragraphs 12 to 12.3, 12.5, 13 and 16 thereunder. The
said paragraphs, insofar as they are relevant to this case,
are as under:
12. The law declared in Talukdar has consistently
been followed, for instance, in Bindeshwari Prasad
Singh v. Kali Singh it was observed: (Bindeshwari
Prasad Singh case, SCC p. 59, para 4)
“4. … 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.”
(emphasis supplied)The view taken in Bindeshwari was followed in A.S.
Gauraya v. S.N. Thakur.
12.1. In Jatinder Singh v. Ranjit Kaur the issue was
whether the first complaint having been dismissed
for default, could the second complaint be
maintained. The matter was considered as under:
(SCC pp. 572-74, paras 9 & 12)
“9. There is no provision in the Code or in any
other statute which debars a complainant from
preferring a second complaint on the same
allegations if the first complaint did not result in a
conviction or acquittal or even discharge. Section
300 of the Code, which debars a second trial, has
taken care to explain that “the dismissal of a
complaint, or the discharge of the accused, is not
an acquittal for the purposes of this section”.
However, when a Magistrate conducts an inquiry
SLP (Crl.) No.1242 of 2021 Page 21 of 40
under Section 202 of the Code and dismisses the
complaint on merits, a second complaint on the
same facts cannot be made unless there are very
exceptional circumstances. Even so, a second
complaint is permissible depending upon how
the complaint happened to be dismissed at the
first instance.
* * *
12. If the dismissal of the complaint was not on
merit but on default of the complainant to be
present there is no bar in the complainant moving
the Magistrate again with a second complaint on
the same facts. But if the dismissal of the
complaint under Section 203 of the Code was on
merits the position could be different. There
appeared a difference of opinion earlier as to
whether a second complaint could have been
filed when the dismissal was under Section 203.
The controversy was settled by this Court in
Pramatha Nath Talukdar v. Saroj Ranjan Sarkar,
(1962) 1 Cri LJ 770. A majority of Judges of the
three-Judge Bench held thus: (AIR p. 899, para 48)
‘48. … An order of dismissal under
Section 203, Criminal Procedure Code,
is, however, no bar to the entertainment
of a second complaint on the same facts
but it will be entertained only in
exceptional circumstances, e.g., where
the previous order was passed on an
incomplete record or on a
misunderstanding of the nature of the
complaint or it was manifestly absurd,
SLP (Crl.) No.1242 of 2021 Page 22 of 40
unjust or foolish or where new facts
which could not, with reasonable
diligence, have been brought on the
record in the previous proceedings,
have been adduced. It cannot be said to
be in the interest of justice that after a
decision has been given against the
complainant upon a full consideration of
his case, he or any other person should
be given another opportunity to have his
complaint inquired into.’
(emphasis supplied)
S.K. Das, J. (as he then was) while dissenting
from the said majority view had taken the stand
that right of a complainant to file a second
complaint would not be inhibited even by such
considerations. But at any rate the majority
view is that the second complaint would be
maintainable if the dismissal of the first
complaint was not on merits.
(emphasis supplied)
12.2. In Ranvir Singh v. State of Haryana
Haryana, the issue was set out in para 23 of the
decision and the discussion that followed
thereafter was as under: (SCC p. 647, paras
23-26)
“23. In the instant case, the question is
narrowed down further as to whether such a
second complaint would be maintainable
when the earlier one had not been dismissed
SLP (Crl.) No.1242 of 2021 Page 23 of 40
on merits, but for the failure of the complainant
to put in the process fees for effecting service.
24. The answer has been provided firstly in
Pramatha Nath Talukdar case, wherein this
Court had held that even if a complaint was
dismissed under Section 203 CrPC, a second
complaint would still lie under exceptional
circumstances, indicated hereinbefore. The
said view has been consistently upheld in
subsequent decisions of this Court. Of course,
the question of making a prayer for recalling
the order of dismissal would not be
maintainable before the learned Magistrate in
view of Section 362 CrPC, but such is not the
case in these special leave petitions.
25. In the present cases, neither have the
complaints been dismissed on merit nor have
they been dismissed at the stage of Section 203
CrPC. On the other hand, only on being
satisfied of a prima facie case, the learned
Magistrate had issued process on the
complaint.
26. The said situation is mainly covered by the
decision of this Court in Jatinder Singh case,
wherein the decision in Pramatha Nath
Talukdar case was also taken into
consideration and it was categorically
observed that in the absence of any provision
in the Code barring a second complaint being
filed on the same allegation, there would be no
SLP (Crl.) No.1242 of 2021 Page 24 of 40
bar to a second complaint being filed on the
same facts if the first complaint did not result in
the conviction or acquittal or even discharge of
the accused, and if the dismissal was not on
merit but on account of a default on the part of
the complainant.”
(Underline supplied)
12.3. In Poonam Chand Jain v. Fazru the issue
whether after the dismissal of the earlier complaint
had attained finality, could a second complaint be
maintained on identical facts was considered as
under: (SCC pp. 634-36, paras 14-20)
“14. In the background of these facts, the question
which crops up for determination by this Court is
whether after an order of dismissal of complaint
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.
15. Almost similar questions came up for consideration
before this Court in Pramatha Nath Talukdar v. Saroj
Ranjan Sarkar. The majority judgment in Pramatha
Nath was delivered by Kapur, J. His Lordship held that
an order of dismissal under Section 203 of the Criminal
Procedure Code (for short “the Code”) is, however, no
bar to the entertainment of a second complaint on the
same facts but it can be entertained only in exceptional
circumstances. This Court explained the exceptional
circumstances as:
SLP (Crl.) No.1242 of 2021 Page 25 of 40
(a) where the previous order was passed on
incomplete record, or
(b) on a misunderstanding of the nature of the
complaint, or
(c) the order which was passed was manifestly absurd,
unjust or foolish, or
(d) where new facts which could not, with reasonable
diligence, have been brought on the record in the
previous proceedings.
16. This Court in Pramatha Nath made it very clear that
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.
In para 50 of the judgment the majority judgment of
this Court opined that fresh evidence or fresh facts
must be such which could not with reasonable
diligence have been brought on record. This Court
very clearly held that 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. According to this Court, such a course is not
permitted on a correct view of the law. (para 50, p.
899)
17. This question again came up for consideration
before this Court in Jatinder Singh v. Ranjit Kaur.
There also this Court by relying on the principle in
Pramatha Nath held that here is no provision in the
Code or in any other statute which debars a
complainant from filing a second complaint on the
SLP (Crl.) No.1242 of 2021 Page 26 of 40
same allegation as in the first complaint. But this Court
added 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 could not
be made unless there are “exceptional
circumstances”. This Court held in para 12, if the
dismissal of the first complaint is not on merit but the
dismissal is for the default of the complainant then
there is no bar in filing a second complaint on the same
facts. However, if the dismissal of the complaint under
Section 203 of the Code was on merit the position will
be different.
19. Again in Mahesh Chand v. B. Janardhan Reddy, a
three-Judge Bench of this Court considered this
question in para 19 at p. 740 of the Report. The learned
Judges of this Court held that a second complaint is not
completely barred nor is there any statutory bar in
filing a second complaint on the same facts in a case
where a previous complaint was dismissed without
assigning any reason. The Magistrate under Section
204 of the Code can take cognizance of an offence and
issue process if there is sufficient ground for
proceeding. In Mahesh Chand this Court relied on the
ratio in Pramatha and held if the first complaint had
been dismissed the second complaint can be
entertained only in exceptional circumstances and
thereafter the exceptional circumstances pointed out
in Pramatha were reiterated. Therefore, this Court
holds that the ratio in Pramatha Nath is still holding the
field. The same principle has been reiterated once
again by this Court in Hira Lal v. State of U.P. In para
SLP (Crl.) No.1242 of 2021 Page 27 of 40
14 of the judgment this Court expressly quoted the
ratio in Mahesh Chand discussed hereinabove.
20. Following the aforesaid principles which are more
or less settled and are holding the field since 1962 and
have been repeatedly followed by this Court, we are
of the view that the second complaint in this case was
on almost identical facts which was raised in the first
complaint and which was dismissed on merits. So the
second complaint is not maintainable. This Court finds
that the core of both the complaints is the same.
Nothing has been disclosed in the second complaint
which is substantially new and not disclosed in first
complaint. No case is made out that even after the
exercise of due diligence the facts alleged in the
second complaint were not within the knowledge of
the first complainant. In fact, such a case could not be
made out since the facts in both the complaints are
almost identical. Therefore, the second complaint is
not covered within exceptional circumstances
explained in Pramatha Nath. In that view of the matter
the second complaint in the facts of this case, cannot
be entertained.”
(emphasis supplied)
12.4…..
12.5. In Ravinder Singh v. Sukhbir the matter was
considered from the standpoint whether a frustrated
litigant be permitted to give vent to his frustration and
whether a person be permitted to unleash vendetta to
harass any person needlessly. The discussion was as
under: (SCC pp. 258-60, paras 26-27 & 33)
SLP (Crl.) No.1242 of 2021 Page 28 of 40
“26. While considering the issue at hand
in Shivshankar Singh v. State of Bihar this Court,
after considering its earlier judgments in Pramatha
Nath Talukdar v. Saroj Ranjan Sarkar, Jatinder
Singh v. Ranjit Kaur, Mahesh Chand v. B. Janardhan
Reddy and Poonam Chand Jain v. Fazru held :
(Shivshankar Singh case, SCC p. 136, para 18)
‘18. … it is evident that the law does not prohibit
filing or entertaining of the second complaint
even on the same facts provided the earlier
complaint has been decided on the basis of
insufficient material or the order has been
passed without understanding the nature of the
complaint or the complete facts could not be
placed before the court or where the
complainant came to know certain facts after
disposal of the first complaint which could have
tilted the balance in his favour. However, second
complaint would not be maintainable wherein
the earlier complaint has been disposed of on
full consideration of the case of the complainant
on merit.’
27. In Chandrapal Singh v. Maharaj Singh this
Court has held that it is equally true that
chagrined and frustrated litigants should not be
permitted to give vent to their frustration by
enabling them to invoke the jurisdiction of
criminal courts in a cheap manner. In such a fact
situation, the court must not hesitate to quash
criminal proceedings.
* * *
SLP (Crl.) No.1242 of 2021 Page 29 of 40
33. The High Court has dealt with the issue
involved herein and the matter stood closed at
the instance of Respondent 1 himself. Therefore,
there can be no justification whatsoever to
launch criminal prosecution on that basis afresh.
The inherent power of the court in dealing with
an extraordinary situation is in the larger
interest of administration of justice and for
preventing manifest injustice being done. Thus,
it is a judicial obligation on the court to undo a
wrong in course of administration of justice and
to prevent continuation of unnecessary judicial
process. It may be so necessary to curb the
menace of criminal prosecution as an instrument
of operation of needless harassment. A person
cannot be permitted to unleash vendetta to
harass any person needlessly. Ex debito
justitiae is inbuilt in the inherent power of the
court and the whole idea is to do real, complete
and substantial justice for which the courts exist.
Thus, it becomes the paramount duty of the
court to protect an apparently innocent person,
not to be subjected to prosecution on the basis
of wholly untenable complaint.”
25. After referring to the aforesaid decisions in Samta
Naidu’s case (supra) this Court further, held in
Paragraph 13 thus: –
“13. The application of the principles laid down
in Talukdar in Jatinder Singh shows that “a
second complaint is permissible depending
upon how the complaint happened to beSLP (Crl.) No.1242 of 2021 Page 30 of 40
dismissed at the first instance”. It was further
laid down that: (Jatinder Singh case, SCC p. 573,
para 12)“12. If the dismissal of the complaint was not on
merit but on default of the complainant to be
present there is no bar in the complainant
moving the Magistrate again with a second
complaint on the same facts. But if the dismissal
of the complaint under Section 203 of the Code
was on merits the position could be different.”“To similar effect are the conclusions
in Ranvir Singh and Poonam Chand Jain. Para
16 of Poonam Chand Jain also considered the
effect of para 50 of the majority judgment
in Talukdar. These cases, therefore, show that
if the earlier disposal of the complaint was on
merits and in a manner known to law, the
second complaint on “almost identical facts”
which were raised in the first complaint would
not be maintainable. What has been laid
down is that “if the core of both the complaints
is same”, the second complaint ought not to
be entertained.”
(underline supplied)
26. It was further held in paragraph 16 of the decision in
Samta Naidu’s case (supra) thus: –
“16. As against the facts in Shivshankar, the
present case stands on a different footing.
There was no legal infirmity in the firstSLP (Crl.) No.1242 of 2021 Page 31 of 40
complaint filed in the present matter. The
complaint was filed more than a year after the
sale of the vehicle which meant the
complainant had reasonable time at his
disposal. The earlier complaint was
dismissed after the Judicial Magistrate found
that no prima facie case was made out; the
earlier complaint was not disposed of on any
technical ground; the material adverted to in
the second complaint was only in the nature
of supporting material; and the material
relied upon in the second complaint was not
such which could not have been procured
earlier. Pertinently, the core allegations in
both the complaints were identical. In the
circumstances, the instant matter is
completely covered by the decision of this
Court in Talukdar as explained in Jatinder
Singh and Poonam Chand Jain. The High
Court was thus not justified in holding the
second complaint to be maintainable.”
27. Now, we will have to proceed with the appeal
bearing in mind the exposition of law in Samta Naidu’s
case (supra) that if earlier disposal of the complaint was on
merits and in a manner known to law, the second
complaint on ‘almost identical facts’ which were raised in
the first complaint would not be maintainable. “If the core
of both the complaints is same, the second complaint
ought not to be entertained,” it was further held therein.
SLP (Crl.) No.1242 of 2021 Page 32 of 40
In the light of the factual narration with respect to the
disposal of the original complaint dated 11.11.2010, made
hereinbefore and in view of the courses open to a
Magistrate on receipt of a negative report and applying
the exposition of law in Samta Naidu’s case (supra) with
respect to the maintainability of a second complaint we
have no hesitation to hold that the maintainability of the
second complaint dated 20.07.2011 filed by the second
respondent would depend upon the question whether the
core of the original complaint dated 11.11.2010 and the
second complaint dated 20.07.2011 is the same as the
disposal of the complaint dated 11.11.2010 was on merits
and in a manner known to law. In this context, it is also to
be noted after considering the final report, the protest
complaint and admittedly, upon hearing the counsel for
the complainant the protest petition was rejected not only
by finding that the investigation suffers from no infirmity
but also by finding that since it was conducted properly,
no order for further investigation is invited and further
that the materials are not sufficient to take cognizance. As
noted earlier, despite the said nature of the order dated
06.06.2011 the second respondent-complainant has not
chosen to challenge the same but, chosen only to file a
SLP (Crl.) No.1242 of 2021 Page 33 of 40
fresh complaint, viz., the second complaint dated
20.07.2011.
28. In the contextual situation, it is relevant to note that
earlier the learned Magistrate invoking the power under
Section 202 Cr.P.C., postponed the issuance of summons.
After recording the initial deposition of the complainant
and the witnesses vide order dated 19.09.2011, he
directed for police investigation and report. The High
Court as per order dated 24.05.2012 in Criminal Petition
No. 12/2012 set aside the order dated 19.09.2011 and
directed the appellants herein to file appropriate
application raising the issue of maintainability and in turn,
directing the learned CJM to decide on the maintainability
expeditiously. The order dated 12.07.2012 was passed by
the learned CJM in compliance with the direction in the
order dated 24.05.2012.
29. The order dated 12.07.2012 of the learned CJM
whereunder he discussed the second complaint dated
20.07.2011 would undoubtedly reveal that after taking
into consideration the entire factual background of the
case and the nature of disposal of the original complaint
dated 11.11.2010 under the order dated 06.06.2011 the
application filed by the appellant herein raising
SLP (Crl.) No.1242 of 2021 Page 34 of 40
maintainability of the second complaint was considered
by the learned CJM.
30. We have already referred to the manner the
original complaint was disposed of earlier. The
submissions made on behalf of the parties, the
documents annexed thereto and above all, the order
dated 12.07.2012 of the learned CJM, would reveal that
the second complaint was filed on the same set of facts
contained in the first complaint and the second one was
filed after the dismissal of the protest petition and the
consequential acceptance of the Final Report in the first
complaint. It is not in dispute that subsequent to the
rejection of the protest petition and acceptance of the
Final Report (Annexure P-5) as per order dated
06.06.2011, the matter was not taken forward further by
the respondent/complainant. The second complaint was
filed thereafter on 20.07.2011 reiterating, rather,
reproducing the complaint dated 11.11.2010 and further
adding allegations, virtually made by way of the protest
petition dated 05.05.2011 that the investigation pursuant
to the original complaint was done perfunctorily. It is to
be noted that the said allegation against the investigation
was also rejected earlier as per order dated 06.06.2011
holding that the investigation did not suffer from any
SLP (Crl.) No.1242 of 2021 Page 35 of 40
infirmity and further that it did not deserve further
investigation. Now, a comparison of the first complaint
dated 11.11.2010 and the second complaint dated
20.07.2011 shows that they contain the same set of
allegations against the same accused as has been
observed by the learned CJM in the order dated
12.07.2012. The learned CJM, in the order dated
12.07.2012 after referring to various decisions observed
and held thus:-
“After the original complaint has been duly
investigated by the police and Final Report submitted
therein has been accepted by the Court in a Judicial
Proceeding; therefore, in my considered view it cannot
be re-opened by the means of filing of a second
complaint in respect of the same facts and circumstances.
In this connection, reliance can be placed n (Sic: in) a
Judgment of the Hon’ble Patna High Court reported in
1981 CRL. LAW JOURNAL 795 Bhuveneswar Prasad Singh
and others Vs. State of Bihar and another.
The Hon’ble Patna High Court relying upon a
decision of the Hon’ble Apex Court reported in AIR 1968
Supreme Court 117 Abhinandan Jha Vs. Dinesh Mishra
had held —
Where the Final Report by police holding the
case against the accused persons to be untrue; was
accepted by the Magistrate earlier, than the complaint
petition was filed against the accused, the Magistrate
would not be justified in taking cognizance on the basis
of the complaint petition in respect of the same factsSLP (Crl.) No.1242 of 2021 Page 36 of 40
constituting the offence which were mentioned in the
final form where a Judicial order was passed by
accepting final form.”
31. The circumstances expatiated above and a
scanning of the decision in Samta Naidu’s case and the
decisions referred to in the aforesaid paragraphs
thereunder would constrain us to say, with respect, that
the 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. Merely because this Court
in some of such decisions held that when a Magistrate
conducted an inquiry under Section 202 Cr.P.C., and
dismissed a complaint on merits, a second complaint on
the same facts would not be maintainable unless there
are very exceptional circumstances, it could not be
understood that in all cases where a complaint to a
Magistrate was not proceeded under Section 202 of the
Cr.P.C., and dismissed not at the stage of Section 203,
Cr.P.C., a second complaint or a second protest petition
would be maintainable. The various decisions referred
above in Samta Naidu’s case and recitals therefrom,
extracted above would indubitably reveal the saidSLP (Crl.) No.1242 of 2021 Page 37 of 40
position. The different situations where a second
complaint or a second protest petition would be
maintainable and would not be maintainable were
specifically discussed and decided, in those decisions.
In short, the maintainability or otherwise of the second
complaint would depend upon how the earlier complaint
happened to be rejected/dismissed at the first instance.
32. In the context of the contentions, it is to be noted
that the case at hand stands on a firmer footing than the
case involved in Samta Naidu’s case (supra). Paragraph
16 of Samta Naidu’s case (supra), as extracted above,
would reveal that the earlier complaint involved in that
case was disposed of not on technical ground but on
finding that no prima facie case was made out and in the
second complaint the nature of the supporting materials
were furnished and this Court observed that it could not
be said that those materials furnished and relied upon in
the second complaint could not have been procured
earlier. Thereafter, finding that both the complaints
were identical the finding of the High Court that the
second complaint was maintainable was rejected and the
subject complaint was dismissed as not being
maintainable. In the case at hand, a perusal of protest
petition dated 05.05.2011 and the second complaint
SLP (Crl.) No.1242 of 2021 Page 38 of 40
dated 20.07.2011 would reveal that the second complaint
filed after acceptance of final report filed pursuant to the
investigation in the FIR registered based on the
complaint dated 11.11.2010, that too after considering
the narazi petition and hearing the complainant (the
second respondent herein) the second complaint dated
20.07.2011 has been filed reproducing the first
complaint dated 11.11.2010 and stating that the said
complaint was not properly investigated and action
should be taken on the second complaint dated
20.07.2011. In fact, the indubitable position is that the
core of the original complaint dated 11.11.2010 and the
second complaint dated 20.07.2011 is the same.
33. In the light of the decision in Ravinder Singh v.
Sukhbir Singh15, referred to in Samta Naidu’s case
(supra) repeated complaints by frustrated litigants
cannot be maintained. A scanning of the second
complaint dated 20.07.2011 would reveal that none of the
situations permissible in terms of the decisions referred
supra exist in the case at hand to maintain the said
complaint. When that be the position, the learned
Sessions Judge as also the High Court were not justified
15
(2013) 9 SCC 245
SLP (Crl.) No.1242 of 2021 Page 39 of 40
in interfering with the order passed by the learned CJM
dated 12.07.2012 holding the second complaint as not
maintainable in law and issuing further direction.
34. In the aforesaid circumstances we allow the appeal
and set aside the decision of the High Court dated
08.01.2021 and the decision of the learned Sessions
Judge that got confirmance by the judgment of the High
Court and consequently restore the order of the learned
CJM dated 12.07.2012. In short, the complaint dated
20.07.2011 stands rejected for not being maintainable.
………………………, J.
(C.T. Ravikumar)
………………………, J.
(Rajesh Bindal)
New Delhi;
November 05, 2024.
SLP (Crl.) No.1242 of 2021 Page 40 of 40