Madras High Court
R.Thulasiram vs Chinnapandi on 8 April, 2022
Crl.O.P.(MD)No.5324 of 2021
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 08.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.5324 of 2021
and
Crl.M.P(MD)No.3078 of 2021
1.R.Thulasiram
2.Ramesh ... Petitioners/Accused Nos.1 & 2
Vs.
Chinnapandi ... Respondent/Defacto complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records pertaining to the charge sheet in C.C.No.57 of
2020 pending on the file of the learned District Munsif cum Judicial
Magistrate, Peraiyur and to quash the same sofar as the petitioners
are concerned.
For Petitioners : Mr.K.Navaneetharaja
For Respondent : Mr.M.Jegadesh Pandian
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Crl.O.P.(MD)No.5324 of 2021
ORDER
This Criminal Original Petition has been to quash the charge
sheet in C.C.No.57 of 2020 pending on the file of the learned
District Munsif cum Judicial Magistrate, Peraiyur, insofar as the
petitioners are concerned.
2.The petitioners are arraigned as A.1 and A.2 in the private
complaint lodged by the respondent herein. Originally, there was a
property dispute between the petitioners and the respondent herein
while surveying the land. Pursuant to the same, both the petitioners
as well as the respondent lodged complaints. On the complaint
lodged by the petitioner, F.I.R has been registered in Crime No.154
of 2015 for the offences under Sections 147, 341, 294(b), 323,
427, 355 and 506(i) of I.P.C as against the respondent and his
family members. After completion of investigation, the Inspector of
Police, T.Kallupatti Police Station, Madurai filed a charge-sheet on
the complaint lodged by the petitioners and the same has been
taken cognizance in C.C.No.72 of 2016 on the file of the learned
District Munsif cum Judicial Magistrate, Peraiyur and it is pending for
trial. However, on the complaint lodged by the respondent as
against the petitioners, the Inspector of Police, T.Kallupatti Police
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Crl.O.P.(MD)No.5324 of 2021
Station, Madurai District registered the F.I.R in Crime No.155 of
2015 for the offences under Sections 294(b), 323, 354 and 506(i)
of I.P.C and closed the same as 'mistake of fact'. The respondent
was duly served the referred charge-sheet notice in R.C.S.No.20 of
2016 in the year 2016 itself. However, the respondent failed to file
any protest petition on the closure report in Crime No.155 of 2015.
After a period of four years, in the year 2020, the present impugned
private complaint filed under Section 200 of Cr.P.C without filing any
protest petition on the closure report.
3.Heard the learned counsel appearing for the petitioners and
the learned counsel appearing for the respondent and perused the
materials available on record.
4.In this regard, it is relevant to rely upon a judgment of this
Court in the case of A.Krishna Rao Vs, L.S.Kumar reported in
1998 (I) CTC 329. The relevant portions of the judgment are
extracted hereunder:
“In the present case, 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
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Crl.O.P.(MD)No.5324 of 2021
Magistrate has not accepted the R.C.s. 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
chargesheet. 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. 2, Wallajapet, in CC No.274 of
1994 is not maintainable and the proceedings have
to be quashed.”
5. One more judgment of this Court to which reliance can be
placed is the case of Dr.Parthasarathy Vs. Rukmani and
another reported in CDJ 2016 MHC 009, wherein this Court has
held as follows:
“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
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Crl.O.P.(MD)No.5324 of 2021
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
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Crl.O.P.(MD)No.5324 of 2021
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
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Crl.O.P.(MD)No.5324 of 2021
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:
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Crl.O.P.(MD)No.5324 of 2021
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.
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Crl.O.P.(MD)No.5324 of 2021
119. In the above circumstances, this Court is also of
opinion 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."
4.The above judgments are squarely applicable to the case on
hand, since inspite of receipt of referred charge-sheet notice in
Crime No.155 of 2015, the respondent failed to file any protest
petition on the closure report. However, after a period of four years,
the present private complaint has been lodged for the very same set
of allegations for the occurrence took place on 16.07.2015. The
learned Magistrate has completely discarded the closure report filed
by the Inspector of Police, T.Kallupatti Police Station, Madurai in
Crime No.155 of 2015 and now has taken cognizance in the private
complaint based on the very same set of allegations. Therefore, it
cannot be sustained as against the petitioners and the continuation
of the proceedings as against the petitioners will amount to abuse of
process of Court and it requires interference of this Court in exercise
of its jurisdiction under Section 482 of Cr.P.C.
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Crl.O.P.(MD)No.5324 of 2021
5.In fine, this Criminal Original Petition is allowed and the
proceedings in C.C.No.57 of 2020 pending on the file of the learned
District Munsif cum Judicial Magistrate, Peraiyur is quashed.
Consequently, connected Miscellaneous Petition is closed.
08.04.2022
Internet :Yes
Index :Yes / No
ps
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Crl.O.P.(MD)No.5324 of 2021
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
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is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
The District Munsif cum Judicial Magistrate,
Peraiyur.
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Crl.O.P.(MD)No.5324 of 2021
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.O.P(MD)No.5324 of 2021
08.04.2022
https://www.mhc.tn.gov.in/judis
