Kerala High Court
Rajamma vs State Of Kerala
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY,THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936
Crl.MC.No. 672 of 2012
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C.C.NO. 2255/2011 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT ,
KOLENCHERRY
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PETITIONER / 1ST ACCUSED :
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RAJAMMA,
W/O. KARUNAKARAN, KALAMPURATH HOUSE, KOKKAPILLY.P.O.,
ERNAKULAM - 682 305.
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SRI.ALEX M.THOMBRA
SMT. SHBHA ABRAHAM
RESPONDENTS / STATE AND COMPLAINANT :
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2. USHA NANDAPPAN,
W/O. LATE NANDAPPAN, KONATTU PUTHENPURAYIL HOUSE,
MURIYAMANGALAM, KOKKAPPILLY.P.O., ERNAKULAM - 682 305.
R1 BY PUBLIC PROSECUTOR SRI.GITHESH.R
R2 BY ADVS. SRI.SUNNY P MARKOSE
SRI.G.KRISHNAKUMAR
SRI.K.A.ANI JOSEPH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-07-2014,
ALONG WITH Crl.MC.No. 2197 OF 2012, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 672 of 2012
APPENDIX
PETITIONER(S)' ANNEXURES:
ANNEXURE A1 : TRUE COPY OF THE COMPLAINT FILED IN THE JUDICIAL FIRST
CLASS MAGISTRATE'S COURT, KOLENCHERRY
DATED 24-02-2011 AS C.C.NO. 2255/2011.
ANNEXURE A2 : TRUE COPY OF THE COMPLAINT FILED IN THE JUDICIAL FIRST
CLASS MAGISTRATE'S COURT, KOLENCHERRY
DATED 05-05-2009 AS CMP NO. 5622/2009.
ANNEXURE A3 : TRUE COPY OF THE ORDER SHEET IN C.C. NO. 604/2009 OF
THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT,
KOLENCHERRY.
RESPONDENT(S)' ANNEXURES:
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.HARIPRASAD, J.
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Crl.M.C Nos.672 & 2197 of 2012
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Dated this the 21st day of July, 2014.
C O M M O N O R D E R
Petition filed under Section 482 Cr.P.C. For convenience, Crl.M.C No.672/2012 is taken as the leading case. First accused in C.C No.2255/2011 on the file of Judicial First Class Magistrate Court, Kolencherry is the petitioner in Crl.M.C No.672/2012. Accused 2 to 12 in the same case are the petitioners in Crl.M.C No.2197/2012.
2. Heard the learned counsel for the petitioners and the learned counsel for the contesting respondent.
3. Annexure A1 is the complaint. Case of the complainant is that all the 12 accused persons together caused to file a complaint before police containing per se defamatory statements about the complainant. The complainant was under
the impression that the petitioner in Crl.M.C No.672/2012 (first Crl.M.C Nos.672 & 2197 of 2012 2 accused) was the only person responsible for preferring a police complaint alleging false statements about her. Therefore, she approached the learned Magistrate with Annexure A2 complaint against the first accused alleging offences punishable under Sections 182, 416, 463, 464 and 469 I.P.C. Annexure A3 is the calender in respect of C.C No.604/2009 pertaining to Annexure A2 complaint. It can be seen that some of the accused in Annexure A1 complaint were cited as witnesses in Annexure A2 proceedings. From Annexure A3 calender, it could be seen that after recording the sworn statement of the complainant and the witnesses, the trial court proceeded to examine the witnesses under Section 244 Cr.P.C. On 25-11-2010, the complainant and accused were present before the court below. Two witnesses were also present. But they were not examined on that date and Crl.M.C Nos.672 & 2197 of 2012 3 they were bound over. On the next hearing date, i.e., on 10-02-2011, the complainant was present and the accused was absent. Two witnesses were present. On that day, learned counsel for the complainant submitted that he gave up the witnesses. Recording that fact, the evidence was closed. It was posted for hearing initially on 24-03-2011 and then to 03-05-2011. After hearing both sides, the court below passed an order on 30-05-2011 discharging the accused under Section 245 (1) Cr.P.C. Learned counsel for the petitioners submitted that the following dates are relevant. Complainant filed the first complaint on 05-05-2009. The accused in that case was discharged on 30-05-2011. During the currency of that complaint, another complaint Annexure A1 complaint (second complaint) was filed. Learned counsel contended that there Crl.M.C Nos.672 & 2197 of 2012 4 cannot be two complaints maintained at the same time in respect of same transaction. In answer to this argument, learned counsel for the complainant/respondent submitted that Annexure A2 complaint was alleging offences in respect of creation of false documents and forgery. The second complaint, according to the learned counsel for the complainant, is in respect of defamation.
It is also submitted that the complainant was made to believe that the signature of certain witnesses, cited by her in the first complaint, was forged by the first accused. Later, it was revealed that they were also parties to making the defamatory petition. In essence, the two complaints are in respect of different offences, contended the learned counsel for the complainant.
4. Learned counsel for the petitioners relying on a decision in Poonam Chand Jain and Another v. Fazru ((2010 ) Crl.M.C Nos.672 & 2197 of 2012 5 2 S.C.C 631) contended that Annexure A1 complaint is not maintainable because the first complaint, with almost identical allegations, was not entertained by the court and the accused therein was discharged. Therefore, the principle in Poonam Chand Jain's case (supra) will be applicable to this case also. In the above case, the Supreme Court considered the maintainability of a second complaint after dismissal of the first complaint on merits. It was held that though there is no statutory bar for filing the second complaint on the same fact, but the same can be entertained only in exceptional circumstances. Reliance is also placed in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (A.I.R 1962 S.C 876). Learned counsel for the petitioners contended that the facts in this case would show that the position is still worse since this is a case wherein the accused Crl.M.C Nos.672 & 2197 of 2012 6 in a complaint having identical allegations were discharged at the later stage of the proceedings, viz; under Section 245 Cr.P.C. Noting the contention of the complainant that the first complaint was in respect of offences relating to documents and the second one is for the alleged defamation, I am of the view that it may be improper for this Court in a jurisdiction under Section 482 Cr.P.C to resolve issue regarding the nature of a complaint on the basis of facts. Therefore, I am of the view that the issue can be considered by the court below at the time of framing charge. In other words, the accused are free to agitate all legal issues at the time of hearing on charge in Annexure A1 complaint. Learned counsel for the petitioners submitted that they may be allowed to contest the legal issues at the time of framing charge without making appearance before the court below. Reckoning all the Crl.M.C Nos.672 & 2197 of 2012 7 submissions, following orders are passed :
The prayer in the petition for quashment of Annexure A1 complaint is not allowed. However, it is made clear that the petitioners/accused are free to claim discharge before the court below. The court below shall not insist on the personal appearance of the accused for hearing on the question of charge.
With these directions, Crl.M.C Nos.672 & 2197 of 2012 are disposed of.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, JUDGE.
amk