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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.203 of 2010
(@ SPECIAL LEAVE PETITION (CRL.) NO.1812 OF 2009 )
Poonam Chand Jain and Another ..Appellant(s)
- Versus -
Fazru ..Respondent(s)
J U D G M E N T
GANGULY, J
1. Leave granted.
2. Assailing the judgment of High Court dated
05.02.2009 rendered in Criminal revision No.
552/2000 this appeal was filed.
3. The main contention of the appellants before
this Court is that without any colour of right
the respondent herein repeatedly filed
complaints on same facts and the High Court
without proper appreciation of the facts and
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the legal position allowed the revision
petition of the respondent and caused a grave
failure of justice.
4. The material facts are that a complaint was
filed by the respondent in the court of
judicial Magistrate 1st Class, Nuh on or about
10.06.1992 alleging therein that the appellants
who own and possess his own house at Faridabad
came into contact with the respondent and
ultimately won the confidence of the
respondent. In the complaint it was alleged
that the respondent is an illiterate, innocent
person with a poor village background and he
was induced to purchase some land at village
Mohammedpur for and on behalf of the
appellants. Thus the respondent entered into an
agreement to sell different plots of land of
about 60 acres at Mohammedpur village.
5. The said complaint further alleges that various
sale deeds were executed and registered and
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respondent was given the impression that those
deeds were registered in the names of
appellants and the respondent jointly.
6. It is further alleged that the respondent was
asked to put his thumb impression on the sale
deeds and he was further assured that the land
situated in village Mohammedpur, Nuh will be
transferred in their joint names of appellants
and the respondent.
7. According to the complaint, fraud was thus
played on the respondent by the appellants and
when the respondent realized the same he
allegedly filed a complaint in Chhitranjan Park
police Station on 28.06.1991 but that police
station failed to take any action inter alia on
the ground that the entire thing took place
beyond their territorial jurisdiction.
8. The further case in the complaint is that the
respondent wanted to file complaint before
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local police station but as the police failed
to take any step, the complaint was filed
before the Magistrate complaining of offences
under Sections 420/120B/426 IPC.
9. On such complaint the matter was taken up by
the Judicial Magistrate Ist Class, Nuh and
ultimately after a detailed analysis of factual
and legal position, the Judicial Magistrate Ist
Class came to a conclusion on 13.01.1994 to the
following effect:
"Thus the whole story of the complainant
is bundle of falsehood and is liable to be
discarded forthwith without going further
in the investigation of the allegations.
Hence the complaint is dismissed u/s 420
IPC also qua accused no. 1. Record be
consigned."
10. Challenging the order of the Magistrate, a
revision petition was filed in the High Court
of Punjab and Haryana by the respondent. The
said revision petition was also dismissed by
order dated 12.02.1996 and while dismissing the
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petition the High Court recorded the following
finding:
"Having gone through the judgment of the
trial court and hearing counsel for the
parties, I am of the view that the case is
not for interference. Dismissed."
11. High Court's finding was not challenged and
attained finality. It may be noted that
respondent also filed a civil suit on inter
alia the same allegations. The said Civil Suit
was numbered as 599/92 and was dismissed for
default by the learned Civil Judge, Junior
Division, Nuh.
12. The said order of dismissal of the suit became
final since no attempt was made to challenge
the same.
13. In the meantime, the appellants filed several
suits some of which were filed by several
companies against the respondent for permanent
injunction and other relief. These suits were
numbered as follows:
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"(i) Suit No. 241/89 filed by M/s. SPML
India Ltd along with Suman Malik, w/o
Balkishan / Usman Absul Rahim & Hanif v.
Fazru s/o Bher Khan and Rahim Bux s/o Shri
Kaho Khan
(ii) Suit No.242/89 dated 28.11.1989 title
M/s. SPML India Limited and others vs.
Fazru and others.
(iii) Suit No.243/89 dated 21.11.1989
title Poonam Chand Sethi and other vs.
Fazru and others.
(iv) Suit No.244/89 title M/s. SPML India
Limited vs. Fazru and others."
14. All the suits which were filed against
respondent were clubbed as common questions
were involved and there was an analogous
hearing.
15. All the four suits succeeded with costs and
defendants including the respondents were
prevented from the dispossessing the plaintiff
over the suit land except in the process
established by law. Before passing the final
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decree the Civil Court came to the following
finding:
"23. From the oral as well as documentary
evidence led by the plaintiffs, it is
proved that the plaintiffs have purchased
the suit land from its original owners and
Usman, Hanif and Abdul Rahim are in
cultivating possession of the suit land as
a lessee. The defendant no.1 has himself
admitted that he is not in possession of
the suit land. The defendant no.2 has
already admitted the claim of the
plaintiffs. Therefore, it is concluded
that the plaintiffs are entitled to the
decree of permanent injunction as prayed
for. Hence, this issue is decided in
favour of the plaintiffs and against the
defendants."
16. The aforesaid decree passed on 27.10.1997 was
not challenged by the respondent and therefore
become final.
17. After the civil suits were decreed on 24.10.97,
just a month thereafter on 25.11.97 another
complaint was filed by the respondent in the
Court of Judicial Magistrate on virtually the
same facts. In fact, paragraphs 4, 6, 7 and 9
of the subsequent complaint has a striking
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similarity with the previous one. It may be
mentioned that in the second complaint the fact
of filing of the first complaint and its
dismissal was totally suppressed.
18. On such complaint the Magistrate passed an
order summoning the appellants 1 and 2.
Challenging the said order of summoning the
appellants, the appellants moved a criminal
revision before the Court of Additional
Sessions Judge, Gurgaon and the Additional
Sessions Judge, Gurgaon allowed the revision
and the summoning order was set aside by an
order dated 9.7.99. Against that order the
respondent moved a criminal revision being
Criminal Revision No.552 of 2000 before the
High Court and the Hon'ble High Court reversed
the order passed by the Additional Sessions
Judge and directed the appellants to appear
before the trial Court where appellants were
given liberty to raise all the points and seek
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reconsideration of the order in accordance with
Section 245 of Criminal Procedure Code.
19. Against that order the appellants filed a
special leave petition before this Court
wherein leave was granted and it was numbered
as Criminal Appeal No.371/04.
20. In the said criminal appeal this Court remanded
the matter to the High Court for recording
positive finding on relevant issues. This
Court while remanding the matter was of the
opinion that High Court has not considered the
legality of the order directing issuance of
summon keeping in view the law laid down by
this Court. The exact directions given by this
Court in its concluding portion vide order
dated 15.10.04 in the aforesaid criminal appeal
is as follows:
"As the High Court has not considered the
legality of the order directing issuance
of process keeping in view the law laid
down by this Court, we feel it would be
proper to remit the matter to the High
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Court to record positive findings on the
relevant issues".
21. After the matter was remanded to the High
Court, the High Court passed the impugned
judgment holding therein that the Magistrate's
order dated 9.1.99 whereby the appellants have
been summoned is restored and the appellants
were asked to face trial.
22. 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.
23. 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
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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
(b) or on a misunderstanding of the nature of
the complaint (c) or 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. 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
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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, page 899)
24. 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
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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. 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):-
"......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,
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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......"
25. 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
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entertained only in exceptional circumstances
and thereafter the exceptional circumstances
pointed out in Pramatha Nath (supra) were
reiterated.
26. Therefore, this Court holds that the ratio 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.
27. 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
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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.
28. 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
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jurisdiction cannot be sustained and is
quashed. This appeal succeeds.
29. There shall be no order as to costs.
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