B.R.K. AATHITHAN versus SUN GROUP & ANR. on 29 November 2022

[2022] 10 S.C.R. 87

B.R.K. AATHITHAN

v.

SUN GROUP & ANR.

(Criminal Appeal Nos. 2080-2083/2022)

NOVEMBER 29, 2022

[SURYA KANT AND J. K. MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973 – s.482 – Quashing ofcriminal proceedings – Second complaint on identical set of facts –Factum of FIR against appellant and his arrest was telecasted andpublicised by the respondents – Complaint u/ss.499 and 500, IPCfiled by appellant against respondents, dismissed by JudicialMagistrate – Revision petition filed by the appellant before HighCourt was dismissed as withdrawn – Appellant filed secondcomplaint under the same provisions on same facts only adding thefactum of Revision Petition and claiming that the second complaintis being filed as per the order of the High Court – Magistratesummoned the respondents, they filed petition u/s.482, Cr.PC whichwas allowed – On appeal, held: Second complaint can bemaintainable in exceptional circumstances, depending upon themanner in which the first complaint came to be dismissed – In thepresent case, when the first complaint was filed u/ss.499, 500, IPC,the Judicial Magistrate was well within his jurisdictional competenceto find out whether a prima facie case for summoning the accusedwas made out or not, however, on having found that the allegationsmade by appellant were in the teeth of fourth exception to s.499,IPC, he declined to issue process to the respondents – Such dismissalcannot be said to be without application of judicial mind, even iferroneous in law – Appellant took a chance and challenged thesaid order of dismissal before High Court in Revision – No soonerthe High Court expressed reluctance to entertain the Revision Petitionon merits, the appellant withdrew the same to work out his remedyas available in law – Such order cannot be construed to havepermitted the appellant to file a second complaint on identical setof facts – No error in the impugned judgment – Penal Code,1860 –ss.499, 500.

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88SUPREME COURT REPORTS

ADismissing the appeals, the Court

HELD: There can be no quarrel that in view of the decisionsof this Court in “Pramantha Nath Talukdar v. Saroj RanjanSarkar” AIR 1962 SC 876 and “Shivshankar Singh Vs. State ofBihar and Another” (2012) 1 SCC 130, the second complaint canBbe maintainable in exceptional circumstances, depending uponthe manner in which the first complaint came to be dismissed. Tosay it differently, if the first complaint was dismissed withoutventuring into the merits of the case or on a technical groundand/or by returning a reasoning which can be termed as perverseor absurd in law, and/or when the essential foundation of secondCcomplaint is based upon such set of facts which were either notin existence at the time when the first complaint was filed or thecomplainant could not have possibly lay his hands to such facts atthat time, an exception can be made to entertain the secondcomplaint. These principles, however, are not attracted to theDfacts circumstances of the case in hand. When the first complaintwas filed primarily under Sections 499 and 500 IPC, the JudicialMagistrate was well within his jurisdictional competence to findout whether a prima facie case for summoning the accused wasmade out or not. This essentially involved application of judicialmind to reach a definite conclusion as to whether or not theEaccused be summoned. In the instant case, the JudicialMagistrate having found that the allegations made by the appellantwere in the teeth of fourth exception to Section 499 IPC, hedeclined to issue process to the respondents. Such dismissalcannot be said to be without application of judicial mind. TheFapplication of judicial mind and arriving at an erroneous conclusionare two distinct things. The Court even after due application ofmind may reach to an erroneous conclusion and such an order isalways justiciable before a superior Court. Even if the said Orderis set aside, it does not mean that the trial court did not apply its

mind. The appellant took a chance and challenged the order ofGdismissal of his 1st complaint before the High Court in a CriminalRevision Petition. It is apparent from the contents of the Orderthat no sooner the High Court expressed its reluctance toentertain the Revision Petition on merits, the appellant withdrewthe same to work out his remedy as may be available in law. ThisH

Order cannot be construed to have permitted the appellant tofile a second complaint on identical set of facts. The view takenby the High Court in Para No. 19 and Para No. 22 of its impugnedOrder, thus, appears to be the correct statement of law. Even ifthe order of Judicial Magistrate while dismissing the firstcomplaint was erroneous in law, it does not amount to non-application of mind by the trial court. No error found in theimpugned Judgment passed by the High Court. [Paras 14-17, 19and 20][92-G-H; 93-A-G; 94-C-D]

Pramantha Nath Talukdar v. Saroj Ranjan Sarkar AIR1962 SC 876 : [1962] Suppl. SCR 297; ShivshankarSingh v. State of Bihar and Another (2012) 1 SCC 130

: [2011] 13 SCR 247 – relied on.

Subramanian Swamy v. Union of India (2016) 7 SCC221 : [2016] 3 SCR 865 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 2080-2083 of 2022.

From the Judgment and Order dated 30.08.2019 of the High Courtof Madras at Madurai Bench in Criminal Original Petition (MD) Nos.1246 and 1298-1300 of 2017.

P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. SibiKargil, V. Kandha Prabhu, L. R. Venkatesan, Ms. Maitri Goal,Ms. Priyanka Chowdhary, Hemant Kumar Niranjan, K. K. Chauhan,Advs. for the Appellant.

Satyanarayan, Sr. Adv., Abhishek Malhotra, Ms. Liz Mathew,Harsh Buch, Ms. Vasudha Jain, K. V. Jagdishwaran, Ms. G. Indira,Harnaman Singh, P. Gandeepan, Mrs. Koj Yaayung, Kashyap, Advs. forthe Respondents.

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AThe Judgment of the Court was delivered bySURYA KANT, J.

Delay condoned.

2. Leave granted.B

3. The appellant assails the Judgment and Order dated 30-08-2019 passed by the High Court of Judicature at Madras, Madurai Bench,whereby the High Court allowed the petition under Section 482 of theCode of Criminal Procedure, 1973 (in short, ‘the Cr.P.C.’) filed by therespondents and quashed the Criminal Complaint viz. STC No.45 ofC2017, filed under Sections 499 and 500 of the Indian Penal Code, whichthe appellant had filed against the respondents.

4. Briefly stated, the facts are that First Information Report No.345of 2013 was registered against the appellant under Section 468 IPCbefore Tirucher Taluk Police, Tutukodi District at the instant of anDAdvocate who alleged that the appellant had taken huge amounts ofmoney by assuring admission to candidates in various law colleges.

5. The factum of registration of the FIR and arrest of the appellantin that case was tele-casted and published in the TV and print media bythe respondents.

E6. The appellant having felt that the action of the respondentsamounted to criminal defamation, filed a Criminal Complaint underSections 499 and 500 IPC etc. which was, however, dismissed by thelearned Judicial Magistrate on 28-04-2015 by passing the followingOrder:- F“Heard perused, it is alleged by the Petitioner that the Respondentsbroad-casted and published defamation against the Petitioner. Onperusal of the available material which is revealed that the contentof the Petitioner falls in the Fourth exception of U/s 499 of IPC.Hence, there is no prima facie case made out against theRespondents for the alleged offences. Hence, this Petition standsGis dismissed.

7. The aggrieved appellant filed a Criminal Revision before theHigh Court but the same was withdrawn on 10-06-2015 in the followingterms:- H

“As per the endorsement made by the learned counsel appearingfor the revision petitioner, this revision petition is dismissed aswithdrawn with liberty to the petitioner to work out his remedy inthe manner known to law.”

8. Thereafter, the appellant filed second Criminal complaint, i.e,STC 45/2017 in the Court of Judicial Magistrate at Tiruchendur whichtoo was under the same provisions as was his first complaint.

9. It is hardly in dispute that the second complaint was replica ofthe first complaint with each and every averments being identical exceptthat in the second complaint, the appellant added one more paragraphNo.11, incorporating the factum of filing Criminal Revision before theHigh Court; rejection thereof and further claiming that he had filed asecond complaint “as per the order of the Hon’ble Madurai Bench ofthe Madras High Court”.

10. In the second complaint, learned Judicial Magistrate summonedthe respondents which prompted them to file a Petition under Section482 of the Cr.P.C. before the High Court, seeking quashing of the saidcomplaint primarily on the ground that the second complaint on the sameset of facts and circumstances was not maintainable. Vide impugnedJudgment and Order dated 30-08-2019, the High Court allowed the petitionfiled by the respondents and consequently, the second complaint filed bythe appellant has been quashed.

11. The High Court while reaching the said conclusion has held asfollows:- “Keeping the above principles in mind, let me now consider theissue. The averments made in the first complaint filed by therespondent, coupled with the sworn in statements of the witnesseswere fully considered by the learned Magistrate. On consideringthe entire materials, the learned Magistrate has come to a conclusionthat, the complaint squarely fall under fourth exception to Section499 of IPC, he declined to issue the process to respondents andthere was no prima facie case made out against the accused thereinand dismissed the same. On a perusal of the earlier order, it couldbe seen that the learned Magistrate had duly applied his mind andon being satisfied that no prima facia case was made out againstthe accused, as the allegations made in the complaint would onlyfall under Section 499 of IPC, and dismissed the complaint, and A

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Athe order has been passed upon full consideration of the entirematerials available on record, whether the order is correct or notis totally a different issue. Once a learned Magistrate applied hismind on the materials available on record and came to a conclusionthat no prima facie case was made out against the accused anddismissed the complaint, another Judicial Magistrate cannot holdBthat the earlier order passed by his predecessor is not valid, itvirtually amounts to reviewing the earlier order, which is barredunder Section 362 Cr.P.C. The only remedy available to thecomplainant is to challenge the same before the appropriate forumand get that order set aside. In the present case, the respondent/Ccomplainant has already challenged the order by way of a revisionbefore this Court, but, subsequently, he has withdrawn the revisionand the revision was also dismissed. In the above circumstances,after getting the revision dismissed, the respondent/complainantcannot maintain another complainant on the very same fact.”

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D12. The High Court has further observed in Para 22, to thefollowing effect:-

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D12. The High Court has further observed in Para 22, to thefollowing effect:- “As already discussed above, the second complaint in the instantcase is replica of the facts set out in the first complaint and nofresh facts have been set out in the second complaint. The coreEissue in both the complaints are one and the same. The secondcomplaint also does not disclose any of the exceptionalcircumstances warranting the entertainment of the complaint. Theearlier complaint wass dismissed after full consideration of theentire materials available on record, unless the order dismissingthe complaint under Section 203 of Cr.P.C. is set aside by aFcompetent forum, a second complaint is not maintainable”.

13. We have heard learned counsel appearing for the appellant aswell as learned counsel appearing for the respondents and gone throughthe record.

G14. There can be no quarrel that in view of the decisions of thisCourt in “Pramantha Nath Talukdar v. Saroj Ranjan Sarkar” AIR1962Supreme Court 876” and “Shivshankar Singh Vs. State of Biharand Another” (2012) 1 SCC 130, the second complaint can bemaintainable in exceptional circumstances, depending upon the mannerin which the first complaint came to be dismissed. To say it differently, if H

the first complaint was dismissed without venturing into the merits of thecase or on a technical ground and/or by returning a reasoning which canbe termed as perverse or absurd in law, and/or when the essentialfoundation of second complaint is based upon such set of facts whichwere either not in existence at the time when the first complaint wasfiled or the complainant could not have possibly lay his hands to suchfacts at that time, an exception can be made to entertain the secondcomplaint.

15. These principles, however, in our considered view, are notattracted to the facts circumstances of the case in hand. When the firstcomplaint was filed primarily under Sections 499 and 500 IPC, the JudicialMagistrate was well within his jurisdictional competence to find outwhether a prima facie case for summoning the accused was made outor not.

16. This essentially involved application of judicial mind to reach adefinite conclusion as to whether or not the accused be summoned. Inthe instant case, the learned Judicial Magistrate having found that theallegations made by the appellant were in the teeth of fourth exceptionto Section 499 IPC, he declined to issue process to the respondents.Such dismissal cannot be said to be without application of judicial mind.The application of judicial mind and arriving at an erroneous conclusionare two distinct things. The Court even after due application of mindmay reach to an erroneous conclusion and such an order is alwaysjusticiable before a superior Court. Even if the said Order is set aside, itdoes not mean that the trial court did not apply its mind.

17. The appellant took a chance and challenged the order ofdismissal of his 1[st] complaint before the High Court in a Criminal RevisionPetition. It is apparent from the contents of the Order that no sooner theHigh Court expressed its reluctance to entertain the Revision Petition onmerits, the appellant withdrew the same to work out his remedy as maybe available in law. This Order cannot be construed to have permittedthe appellant to file a second complaint on identical set of facts. Theview taken by the High Court in Para No.19 and Para No. 22 of itsimpugned Order, as reproduced above, thus, appears to be the correctstatement of law.

18. Learned counsel appearing for the appellant then relies uponthe Judgment of this Court in “Subramanian Swamy Vs. Union of A

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AIndia”(2016) 7 SCC 221, to urge that the onus was on the respondentsto establish that the appellant’s first complaint was barred by fourthexception to Section 499 of IPC.

19. It appears to us that such a contention was available to theappellant before the High Court in Criminal Revision filed by himBchallenging the order of dismissal of his first complaint. The appellantinstead of withdrawing the Criminal Revision, ought to have invited anorder on merits including on the contention sought to be raised now. Asstated earlier, even if the order of learned Judicial Magistrate whiledismissing the first complaint was erroneous in law, it does not amountto non-application of mind by the trial court.

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20. For the aforesaid reasons, we do not find any error in theimpugned Judgment dated 39-08-2019 passed by the High Court.

21. The appeals are, accordingly, dismissed.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeals dismissed.

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