Madras High Court
Dr.Parthasarathy vs Rukmani 1St on 22 December, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.12.2015
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
Crl.O.P.(MD) No.16419 of 2015
and M.P.(MD) No.1 of 2015
Dr.Parthasarathy ... Petitioner/A1
vs
1. Rukmani 1st respondent/defacto complainant
2. The Sub-Inspector of Police,
All Women Police Station,
Pudukottai ... 2nd respondent/A2
Prayer: Petition filed under Section 482 of Code of Criminal Procedure to
call for the records culminating in proceeding in PRC No.15 of 2015 on the
file of the learned Judicial Magistrate, Pudukottai and quash the same.
For Petitioner : Mr.J.Sivananda Raj
For Mr.V.Sankaranarayanan
^For R1 : No Representation
For R2 : Mrs.S.Prabha
Govt. Advocate (Crl.Side)
:ORDER
This petition has been filed, seeking to call for the records culminating in proceeding in P.R.C.No.15 of 2015 on the file of the learned Judicial Magistrate, Pudukottai and quash the same.
2. The case of the petitioner is that he is aged 76 years now and he has been falsely implicated in a case in P.R.C.No.15 of 2015 on the file of the learned Judicial Magistrate, Pudukottai for the incident said to have taken place on 02.04.2009. The 1st respondent herein made a complaint to the Police, alleging that she was raped by the petitioner herein and that Police investigated into the matter and after examination, closed the complaint. During investigation, there is a statement given by the mother of the victim, which was construed as hearsay and the same has not been accepted by the investigating officer.
2.1. It is submitted that apart from 161 statement, statement under Section 164 was also recorded. The report along with the evidence filed before the Lower Court was accepted and the final report filed by the Police closing the complaint as Mistake of Fact was also accepted on 20.08.2009 by the Magistrate. However, permission was granted to the 1st respondent to pursue her remedy by way of the private complaint already filed.
3. It is seen that the 1st respondent has already filed a private complaint prior to the order passed by the Judicial Magistrate, Pudukottai. The Magistrate, after recording the statement and referring to a decision of this Court in the case of T.N.P.Muthoo Natarajan Trustee & Treasurer Tirupur Education Foundation vs. P.V.Ravi and others, reported in Manu/TN/0921/2015, issued summons to the petitioner herein, which has been questioned by the petitioner.
4. The contention of the petitioner is that after closure of the complaint on the ground of mistake of fact, there cannot be a second complaint on the same cause of action. In the case relied on by the Magistrate, referred to supra, the police, without calling the petitioner therein for enquiry, closed the complaint as 'mistake of fact' and furnished a copy to him; thereafter when the Board of Trustees sent a notice to A1 and other Trustees with an Agenda for suspension, the accused had produced documents, which were not relevant to the case; though the complaint did not pertain to land grabbing, the same was forwarded to Land Grabbing Cell and was closed as 'mistake of fact' and hence, the petitioner therein preferred a private complaint.
4.1. It is pointed out by the petitioner that in the case on hand, Police have enquired everyone including the victim and the mother of the victim and came to the conclusion that no case has been made out and closed the complaint as mistake of fact, which has also been accepted by the Magistrate.
5. Despite notice being served on the 1st respondent, she has not chosen to appear before this Court either in person or through a counsel.
6. The Government Advocate (Crl.Side) is unable to refute the legal proposition, but, however, submitted that fair enquiry has been conducted. Several witnesses have been examined before filing the final report and being satisfied with the report, the Magistrate had closed the complaint
7. Heard both sides and perused the material documents.
8. A careful scrutiny of the case would reveal that the Judicial Magistrate, Pudukottai, while closing the complaint lodged by the 1st respondent for want of proper evidence, based on the final report filed by the respondent police, had given a liberty to the defacto complainant to pursue her remedy by way of the private complaint already filed. While passing such an order, the Magistrate has referred to a decision of this Court in the case of T.N.P.Muthoo Natarajan Trustee & Treasurer Tirupur Education Foundation vs. P.V.Ravi and others (supra). If the said judgment is given thoughtful consideration, there is no nexus with the facts of the present case and it cannot not be said to form a basis for arriving at a conclusion in this case.
9. Besides that, it is seen that the neighbour of the 1st respondent, in the 161 statement, has clearly deposed that the victim was very much present in her own house during the time at which the said incident is said to have been committed by the petitioner. The only witness available against the petitioner is the mother of the victim, who has stated ill of the petitioner, but the same has been admitted to be a hearsay. In addition, the Forensic Report, submitted by the Scientific Officer proves the fact that Sperm or Sperma tozoa was not deducted on the item, produced by the Police.
10. The Hon'ble Supreme Court in the case of Hira Lal and others vs. State of Uttar Pradesh and others, reported in (2009) 11 SCC 89, has categorically held as under:
"12. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible as that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.
19. The second complaint petition filed by the third respondent does not disclose any such exceptional case. It reiterated the same allegations as were made in the first complaint petition. No fresh fact was brought to the notice of the court. The core contention raised in both the complaint petitions was alleged execution of a forged will by Tika Ram Tyagi."
11. Of course, it is no doubt true that the private complaint has been filed prior to passing of the order by the Magistrate and the same cannot be construed as the second complaint, but at the same time, no exceptional case, as mandated by the the Apex Court, has been made out in the private complaint and the very same allegations were found mentioned in it.
12. Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter 16 of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Though an order of dismissal under Section 203 Cr.P.C. is however, no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, i.e., 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. Such misdemeanor has not occurred in this case, as Police, after thorough examination of all the witnesses, closed the complaint as 'mistake of fact', which the Magistrate, had also accepted it in entirety.
13. It is relevant to point out here that once a final report is filed before a Magistrate, it is the bounden duty cast upon the Magistrate to provide an opportunity for filing protest petition. Mechanically acceptance of the final report may disentitle the defacto complainant, filing afresh complaint under Section 200 Cr.P.C. or under any other provisions of law, which is an unhealthy practice. Likewise, once a report is accepted by the Magistrate, that attains finality, the aggrieved person cannot file a private complaint for the same cause of action. Though I agree with the contention of the petitioner in this case, the act of the Magistrate in accepting the report mechanically without asking the complainant to file a protest petition is non-est in the eye of law.
14. The Hon'ble Supreme Court in the case of Vasanti Dubey vs State Of M.P., reported in 2012 (2) SCC 73, has held as under:
"This position has been further reiterated and reinforced in a recent judgment of this Court delivered in the matter of Ram Naresh Prasad vs. State of Jharkhand2, wherein it has been held that when the police submitted a final report of investigation of the case which in colloquial term is called closure report, the magistrate cannot direct the police to submit the charge- sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down 2 (2009) 11 SCC 299 underSection 190 read with Section 156 of the Cr.P.C. itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in the matter of Bains vs. State3, wherein their lordships have summarised the position as follows:-
"1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;
2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps :
"i. If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.
ii. He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such 3 AIR 1980 SC 1883 = 1980 (4) SCC 631 enquiry take action under Section.
203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the magistrate cannot direct the police to straightway submit the charge- sheet as was the view expressed in the matter of Abhinandan Jha (supra) which was relied upon in the matter of Ram Naresh Prasad (supra)."
14. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section
203. He is also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge-sheet by the police.?
15. The Hon'ble Allahabad High Court also in the case of Har Narain v. Hoshiar Singh, reported in AIR 1935 All 341, held thus:
"A Magistrate under S. 164 Criminal Procedure Code, does not act mechanically merely as a ministerial officer. He can record a statement or confession made to him in the course of an investigation as well as before the commencement of an enquiry or trial.?
16. This Court also in the case of Bhanwarlal Sharma vs. K.V.Sathyanarayanan and others, reported in 2012 MLJ (Crl) 57, by referring to various judgments, has rendered a finding as under:
"25. We are unable to appreciate the submissions made on behalf of the petitioner, since the law with regard to the filing of a second complaint is now crystallised. It is well settled that such a complaint is maintainable in different circumstances as enumerated in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 and Jainder Singh vs. Ranjit, (2001) 2 SCC 570 : 2001 SCC (Cri) 354."
26. The facts of the present case on hand are almost identical to the facts in A.Krishna Rao vs. L.S.Kumar 1998 (I) CTC 329. In this case the respondent L.S.Kumar had preferred a complaint against the petitioner and others before the SIPCOT Police Station at Ranipet and a receipt in F.D.R.No.110 of 1993 had been issued to him by the Police. As the police had not taken any further action on the said complaint, the complainant filed a private complaint before the learned Judicial Magistrate No.II, Wallajapet and the learned Judicial Magistrate had forwarded the said complaint to the police under Section 156(3) Cr.P.C., for investigation and report. The police registered a case in Crime No.389 of 1994 under Sections 323, 341 and 506(2) I.P.C., and after investigation the investigating officer had filed the final report on 09.12.1994 referring the case as 'Mistake of fact'. The learned Judicial Magistrate had sent a memo along with the R.C.S.Notice and the complainant did not file any objection and on the contrary he had filed another private complaint on 15.12.1994 and the same was taken by the said Court in C.C.No.274 of 1994. As the Police had already investigated the case and the matter had been referred to as 'Mistake of fact', the learned Magistrate ought not to have taken cognizance of the second complaint. In such circumstances, the learned Single Judge of this Court had concluded that the proceedings in the second complaint, which was pending in C.C.No.274 of 1994 on the file of the learned Judicial Magistrate, Wallajapet had to be quashed.
28......The Police have filed the referred charge sheet as 'mistake of fact'. It seems the Magistrate has accepted the R.C.S. It is not the case of the respondent herein that the Magistrate has not accepted the R.Cs., filed by the Police. In such circumstances, when the Magistrate has accepted the R.C.S., the second complaint should be filed only after setting aside the order passed by the learned Magistrate in the referred charge sheet. However, the respondent herein has not taken any such action and instead had filed a second complaint which the learned Magistrate has taken cognizance. It has been held in the above decisions that taking cognizance in the second complaint, makes the same not maintainable. I have no hesitation to follow the said view, and as such it has to be held that the second complaint which is pending before the learned Judicial Magistrate No.II, Wallajapet in C.C.No.274 of 1994 is not maintainable and the proceedings have to be quashed. Accordingly, the criminal proceedings were quashed.
101. This Court has endorsed the view expressed by various High Courts as well as the Apex Court that there is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under Section 203 of the Code of Criminal Procedure. This Court also accepts the view that as a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of a second complaint on the same allegations. This Court could say in other words, that there must be good reasons as to why the Magistrate thinks that there is "sufficient ground for proceeding" with the second complaint, when a previous complaint on the same allegations was dismissed.
102. After examining various circumstances and the related facts, the larger Bench of the Apex Court has carved out the exceptional circumstances under the following three categories to answer the question of entertainment of a second complaint on the same allegations, when a previous complaint had been dismissed under Section 203 of the code of Criminal Procedure:
i. Manifest error, ii. Manifest miscarriage of justice, and iii. New facts, which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. After carving out the above said exceptional circumstances, the Apex Court has held that:
Any exceptional circumstances coming within any one or more of the aforesaid three categories would fulfil the test. It is also held that: One new category mentioned was where the previous order of dismissal was passed on an incomplete record or a misunderstanding of the nature of the complaint. This new category would perhaps fall within the category of manifest error or miscarriage of justice.
103. In the instant case on hand, this Court finds that the second complaint in Crl.M.P.No.2145 of 2007 does not come under the above said three categories and this Court also finds that the Order of the learned Chief Metropolitan Magistrate dated 30.10.2009 has not resulted in a miscarriage of justice and therefore it does not create any necessity to entertain a second complaint on the same allegations made in the first complaint in Crl.M.P.No.507 of 2007.
104. In sofar as the second complaint in Crl.M.P.No.2145 of 2007 is concerned, on its reference by the learned Chief Metropolitan Magistrate, Egmore, Chennai under Section 156(3) of the Code of Criminal Procedure, the case in C.C.B.X Crime No.703 of 2007 under Sections 468, 471, 420r/w 120B I.P.C., was registered. After thorough investigation, an elaborate final report dated 28.06.2009 was submitted by the third respondent Police before the learned Chief Metropolitan Magistrate, Egmore, Chennai, in which he had narrated all the previous incidents as well as several civil litigations initiated by the first respondent/complainant as against the accused persons.
119. In the above circumstances, this Court is also of opinion S.VAIDYANATHAN.J., ar that the bringing of the fresh complaint is a gross abuse of process of law and is not with the object of furthering the interests of justice."
17. In view of what is stated herein above, finding much force in the contention raised by the petitioner, this Court is of the opinion that the Magistrate could not have taken cognizance of the offence or issued any summons to the petitioner. Therefore, this Criminal Original Petition is allowed and the proceedings in P.R.C.No.15 of 2015 on the file of the Judicial Magistrate, Pudukottai stand quashed. Consequently, connected miscellaneous petition is also closed.
To
1. The Judicial Magistrate, Pudukottai.
2. The Sub-Inspector of Police, All Women Police Station, Pudukottai.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.