Karnataka High Court
Sri S B Ranga Rao vs Sri S B Jayasimha on 14 December, 2021
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER,2021
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.4600 OF 2017
BETWEEN:
SRI. S.B. RANGA RAO
S/O. LATE B. RAMARAO
AGED ABOUT 82 YEARS
R/AT D.NO.45/A,
2ND MAIN ROAD
OPPOSITE SANKETHI HOSTEL
JAYANAGAR,
MYSORE-2014.
...PETITIONER
(BY SRI. PRATHEEP K.C., ADVOCATE)
AND:
SRI. S.B. JAYASIMHA
S/O. S.B. VENKOBA RAO
AGED ABOUT 60 YEARS
R/AT NO.25 (OLD NO.158)
3RD MAIN ROAD
VYALIKAVAL
BANGALORE.
...RESPONDENT
(BY SRI. T. PRAKASH, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN SO FAR AS
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PETITIONER IS CONCERNED IN C.C. NO.4786/2013 ON THE
FILE OF VIII A.C.M.M., BENGALURU FOR THE OFFENCE
P/U/S 420, 464, 465, 471 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in this petition, before this court calling in question the proceedings in C.C. No.4786/2013 pending before the VIII ACMM, Bengaluru, filed for offences punishable under Sections 420, 464, 465 and 471 of IPC.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The present proceedings arise out of PCR No.10783/2012. Before embarking upon the consideration of the issue in the present case, it is germane to notice that the very complainant has registered a private complaint in PCR No.4296/2007, in which the police after investigation have filed a 'B' summary report. The 'B' report is accepted by the -3- competent court. The present complainant who was the complainant in the said case as well challenging the said order of the criminal court, closing the proceeding on acceptance of the 'B' report, files Crl.P.No.1778/2009 before this Court. This Court by an order dated 15.06.2009, dismissed the claim of the complainant that he had to get an opportunity before the criminal Court to file a protest petition to the 'B' report and the proceedings to be taken further. This Court rejected the said claim by the following order:
"The petitioner has called in question the order, dt. 20.02.2008 passed by the IV Addl. CMM, Bangalore in PCR No.4296/2007.
2. Petitioner had filed a private complaint under Section 200 Cr.P.C. inter alia alleging that site bearing No.158, III Main, Vyalikaval, measuring 30' x 40' was allotted to complainant's grand-father by intimation, dt. 26.02.1959. However, the hire purchase agreement was not signed by the Secretary. In this regard, the complainant's father i.e., eldest son has made the complete payment of installments. Despite that the society executed the agreement in the joint names of the complainant's father and accused No.1. In 1975, the father of the complainant enquired with the society as to why the sale deed is not executed in his favour, he came to know that the society has executed the sale deed in favour of accused No.1 and he has collected the sale deed. It is further alleged that in this regard, O.S. No.15666/2003 is also pending.-4-
3. It is now not disputed by the learned counsel appearing for the petitioner that suit is disposed of holding that the sale deed in favour of accused No.1 is not required to be cancelled and confirming the sale and it is not stated that the matter is pending in appeal before this court.
4. The learned counsel appearing for the petitioner submits that B report is submitted by the police and it is accepted without giving an opportunity to the petitioner. The order sheet shows that the learned counsel for the complainant was not present. In such circumstances, the Magistrate has no option except to consider the B report and dispose of the matter. Accordingly, he has disposed of the matter.
5. Considering - a) the civil litigation pending between the parties, b) the decree in respect of the same site, and c) the sale deed executed in favour of accused No.1 is not cancelled by Court, it is not a fit case for interference.
6. The other contention raised by the learned counsel for the petitioner is that notice was not issued to the complainant. Even assuming that notice is not issued, considering the circumstances, it is not a case for interference.
7. Petition is dismissed."
(Emphasis supplied)
4. The dismissal of the petition has become final. The complainant in the present case was the petitioner in Crl.P.No.1778/2009 and present petitioner -5- was respondent No.1. This case arose out of the proceedings in PCR No.4296/2009 between the same parties, which came to be closed by the criminal court on 20.02.2008, accepting 'B' report. Therefore, the 1st set of proceedings between the same parties ended in the order passed by this Court, which has become final.
5. The observation in the order of this Court is that the civil litigations pending between the parties in respect of the same site and sale deed executed in favour of accused No.1 therein, i.e., the petitioner herein is not cancelled by any Court of law, while observing thus, this Court opined that it was not a fit case for interference. It is submitted at the bar that the civil litigation between the petitioner and the complainant/respondent who are the members of the family is pending adjudication before this court in a Regular First Appeal.
6. After dismissal of the writ petition, the complainant takes recourse of registration of a second complaint in PCR No.10783/2012, alleging very same -6- offences that had been alleged in an earlier complaint which ends up in a 'B' report. Pursuant to filing of a complaint, the police have filed charge sheet, cognizance was taken by the learned Magistrate for the offence punishable under Sections 464, 465, 471 of IPC and the proceedings have continued.
7. The learned counsel appearing for the petitioner would contend that the complainant after having suffered an order of dismissal (supra) of the Criminal Petition again registered another complaint for the very same offence on the very same set of facts, which would fall foul of the judgment rendered by the Hon'ble Apex Court and that of this Court in the case of Sri. Annasaheb Appanna Kamble vs. The State of Karnataka and another in Crl.P.No.11633/2011.
8. The Hon'ble Apex Court in the case of Poonam Chand Jain and another vs. Fazru1, has held as under:
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(2010) 2 SCC 631 -7- "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 has attains 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 the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - (AIR 1962 SC 876). The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. 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 :
(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 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 paragraph 50 of the judgment the majority judgment of this -8- 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, page 899)
17. This question again came up for consideration before this Court in Jatinder Singh and others vs. Ranjit Kaur - (AIR 2001 SC 784). There also this Court by relying on the principle in Pramatha Nath (supra) held that 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 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 the 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.
18. Saying so, the learned Judges held that the controversy has been settled by this Court in Pramatha Nath (supra) and quoted the observation of Justice Kapur in paragraph 48 of Pramatha Nath (supra):-
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"48......An order of dismissal under S. 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, 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 enquired into......"
19. Again in Mahesh Chand vs. B. Janardhan Reddy and another - (2003) 1 SCC 734, a three Judge Bench of this Court considered this question in paragraph 19 at page 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 (supra) this Court relied on the ratio in Pramatha Nath (supra) 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 Nath (supra) were reiterated. Therefore, this Court holds that the
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10ratio in Pramatha Nath (supra) is still holding the field. The same principle has been reiterated once again by this Court in Hiralal and others vs. State of U.P. & others - AIR 2009 SC 2380. In paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand (supra) discussed hereabove.
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 application 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 (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained.
21. Unfortunately, the High Court fell into an error in not appreciating the legal position in its correct perspective while allowing the revision petition of the respondent. The order passed by the High Court in revision jurisdiction cannot be sustained and is quashed.
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22. This appeal succeeds. There shall be no order as to costs."
9. The Hon'ble Apex Court in the case of Samta Naidu and another vs. State of Madhya Pradesh and another2, has held as under:
"Para 16 - As against the facts in Shivshankar20, the present case stands on a different footing. There was no legal infirmity in the first 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 Taluqdar2 as explained Criminal Appeal Nos.367-368 of 2020 @ SLP(Crl.)Nos.4418-4419 of 2020 Samta Naidu & Anr. Vs. State of Madhya Pradesh and Anr. in Jatinder Singh12 and Poonam Chand Jain14. The High Court was thus not justified in holding the second complaint to be maintainable."2
(2020) 5 SCC 378
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10. The judgment of the Co-ordinate bench of this Court in an identical set of fact, in Crl.P. No.11633/2011, reads as under ;
"In my opinion, when the second complaint was filed, it was the bounden duty of the Magistrate atleast looking to the contents of the second complaint, paragraph 11 would have been read by the Magistrate before referring the matter to the Police, definitely he would have applied his mind so far as previous proceedings are concerned. If he had knowledge of previous transaction he would not have passed such an order referring the matter to the Police for investigation, which is a serious lapse on the part of the Magistrate in not pursuing the complaint averments meticulously before passing such orders. Therefore, it is incumbent upon this court to mention herein that whenever a private complaint is filed the Magistrate who are in the helm of affairs they have to meticulously look into the contents of the complaint this would serve some purpose. Firstly, if on plain reading of the complaint, if the allegations made in the complaint do not constitute any offence alleged against the accused, then the question of taking cognizance or referring the matter to the Police for investigation does not arise. Secondly, if the Magistrate on plain reading of the complaint is of the opinion that he has no jurisdiction to try the subject matter or he gets no jurisdiction to entertain the complaint or dismiss the complaint at the threshold. Thirdly, if the Magistrate is of the opinion that on plain reading of the complaint averments no action can be taken like the matter is on hand he could have dismissed the complaint at the threshold itself as second complaint is not maintainable. Therefore, all the above said laborious process has happened because the Magistrate has not meticulously perused the complaint averments and taken a right decision.
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13. Now, again coming to the facts of this case, the complainant has not at all stated what are the exceptional circumstances in this case in order to file the second complaint as laid down by the Hon'ble Apex Court noted above. In the absence of that, in my opinion, the second complaint filed by the complainant is not at all maintainable.
14. So far as the first complaint is concerned, when the 'B' report is filed before the Court, on the reference by the jurisdictional Magistrate the accused gets a relief at the hands of the Police because after due investigation 'B' report was submitted in favour of the accused. The learned Magistrate has provided sufficient opportunity to contest 'B' report. Accordingly, protest petition was filed. But in support of the protest petition the complainant failed to adduce sworn statement before the jurisdictional Magistrate, which resulted in acquittal of the accused under Section 256 of Criminal Procedure Code. When the law mandates that any order passed under Section 256 of Cr.P.C. amounts to an acquittal, technically it is nothing but a clear chit in favour of the accused. The complainant if at all has suffered any illegality by the orders passed by the learned Magistrate he ought to have challenge the said order before the competent Court, by way of an appeal or revision as the case may be, instead he made effort to file a second complaint."
11. Long before the aforesaid order being passed, a Co-ordinate bench of this court in the case of Subbegowda and others vs. P.S. Saldana3, has held as follows:
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(1996) 3 Kant LJ 124
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"The short point that arises for consideration in this case is whether once a complaint has been investigated by the police and a 'B' report is submitted, it is accepted by the Court and the accused are discharged, whether the complainant can file a second complaint on the same allegations and the accused can be prosecuted.
As pointed by the learned counsel for the petitioners, the sworn statement of the complainant recorded by the learned Magistrate on 25-4-92 itself goes to show that there is such a 'B' report on the first complaint with regard to the very same incident. The learned counsel for the petitioners has also produced certified copy of the order passed by the learned Magistrate accepting the 'B' report on 22-5- 1990. Therefore, the learned Magistrate was aware about the order accepting the 'B' report when he passed the impugned order. As rightly submitted by the learned counsel for the petitioners, there cannot be a double jeopardy for the accused. Article 20 clause 2 of the Constitution of India reads in this regard as follows :- "No person shall be prosecuted and punished for the same offence more than once".
It is clear from the facts that the second complaint filed by the respondent is against this principle. The learned Magistrate therefore could not have taken cognizance of the second complaint and directed the issue of process against the petitioners-accused. Hence, the impugned order cannot be sustained and is liable to be set aside."
For the reasons aforesaid, the revision petition is allowed. The impugned order is hereby set aside. The complaint filed by the complainant is dismissed under Section 203 Cr.P.C.
12. Learned counsel appearing for the respondent has placed reliance upon the judgment of another Co-
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15ordinate bench of this Court in the case Naveen Kumar and others vs. State by Circle Inspector of Police, Udupi Circle, Udupi and another reported in 1998 (5) KLJ 596 to buttress his submission that despite the closure of the earlier case, a second complaint would be maintainable. This submission is unacceptable, as much water has flown after the judgment rendered by this Court (supra) and the law as laid down in subsequent judgments of the Co-ordinate Benches would be applicable to the case at the hand and not ones, relied upon by the learned counsel for the respondent/complainant.
13. Therefore, in the light of the law laid down by the Hon'ble Apex Court and that of two Co-ordinate Benches (supra), the second complaint on the very same offence by the complainant after having suffered an order in Crl.P.No.1778/2009 would not, on the face of it. be maintainable. Any further proceeding, in a complaint that was not even maintainable, would be nullity in law.
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14. For the aforesaid reasons, the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The entire proceedings insofar as petitioner is concerned in CC No.4786/2013 on the file of VIII A.C.M.M., Bengaluru, for offences punishable under Sections 420, 464, 465, 471 of IPC are quashed.
The observations made in the course of this order would not come in the way of adjudication of pending civil litigation between the parties.
Sd/-
JUDGE snc