Madras High Court
Narayanaraj vs Sankar on 10 November, 2022
Crl.O.P.(MD) No.15687 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.11.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P (MD) No.15687 of 2022
and
Crl.M.P.(MD) Nos.10343 and 10344 of 2022
1.Narayanaraj
2.Nagalakshmi ...Petitioners
vs
Sankar ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records pertaining to the case registered in the
impugned private complaint in C.C.No.2 of 2022 on the file of the learned
Judicial Magistrate, Paramakudi and quash the same as illegal, insofar as the
Petitioners are concerned.
For Petitioners : Mr.B.Arun
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
1/14
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
ORDER
This Criminal Original Petition has been filed to quash the private
complaint in C.C.No.2 of 2022 pending on the file of the learned Judicial
Magistrate, Paramakudi.
2.It is the contention of the learned Counsel for the Petitioners that
the Petitioners are the senior citizens. For the same offence, Crime No.70 of
2018 was registered by the Paramakudi Taluk Police, which was closed as
mistake of fact. The Petitioners had obtained information regarding the
same under the Right to Information Act and the referred Charge Sheet was
also filed before the Court concerned. After filing of the referred Charge
Sheet in the year 2018, the Respondent/complainant had lodged the private
complaint. It is for the very same cause of action, which attracts the
limitation under Section 468 Cr.P.C.
3.The learned Counsel for the Petitioners invited the attention of this
Court to the order passed by the learned single Judge of this Court in
Crl.O.P.(MD) No.5324 of 2021 (R.Thulasiram and another Vs.
Chinnapandi) dated 08.04.2022, wherein it had been stated as follows:-
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
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 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 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. 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:
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
“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
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
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.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
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:
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
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.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
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.”
4.The learned Counsel for the Respondent by way of reply would
submit that originally the case is based on the Writ Petition in W.P.(MD)
No.9037 of 2018, which was filed by R.Vijayalakshmi, who is the wife of
the Respondent herein, seeking direction to the Respondents 2 and 3 therein
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
to remove the encroachment, encroached by the Respondents 2 and 3 in the
pathway in S.Nos.204/9, 205 and 205/14 in Muthuramalingampuram
Village, Melakaavanur Revenue Birka Paramakudi Taluk, as per the
proceedings of the Respondents 1 and 2, dated 15.02.2018, 02.03.2018 and
14.03.2018.
5.It is the contention of the learned Counsel for the Petitioner in the
Writ Petition that the Respondents 5 to 15 therein have encroached the
pathway. When that was questioned by the Petitioner, she and her family
members were attacked and abused by the Respondents 5 to 15. The
Petitioner had made representation to the Respondents 2 to 4. Based on the
same, directions were issued by the Division Bench of this Court, vide order
dated 13.11.2018. Subsequently, there was case and counter case. The case
was registered in Crime No.70 of 2018, in which the Petitioners herein are
the accused and the Respondent herein the complainant. The other case was
registered in Crime No.69 of 2018, in which the Respondent herein is an
accused.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
6.The learned Counsel for the Respondent invited the attention of this
Court to the contents of the private complaint, wherein it has been stated
that based on the order passed in the said Writ Petition, there was clashes in
the village, in which the Respondent was injured in his eyes, for which he
had taken treatment. When there was case and counter case, the Police had
not acted impartially as per the Police Standing Orders 566.2.
7.The Police had closed the FIR based on the complaint of the
Respondent as mistake of fact and filed a report in the Court. The
Respondent came to know that belatedly only after filing Crl.O.P.(MD) No.
376 of 2020. The said petition was closed directing the Respondent as
Petitioner to approach the learned Judicial Magistrate concerned and file
protest petition. Accordingly, he had filed Cr.M.P.No.1297 of 2020 seeking
further investigation. The learned Judicial Magistrate closed the petition and
directed the Respondent, who is the Petitioner in Cr.M.P.No.1297 of 2020
to file the private complaint.
8.It is the further submission of the learned Counsel for the
Respondent that Crl.O.P.(MD) No.376 of 2020 was disposed of by this
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
Court on 10.01.2020. Cr.M.P.No.1297 of 2020 was filed on 18.03.2020
seeking further investigation, which was closed by the learned Judicial
Magistrate directing the Petitioner therein to file the private complaint. It is
the further submission of the learned Counsel for the Respondent that
throughout 2021, the parties were not allowed inside the Court. Therefore,
he had filed it only belatedly after the COVID-19 lock down restrictions
were relaxed and the Court started function.
9.The learned Counsel for the Respondent invited the attention of this
Court to the averments contained in the Writ Petition, the subsequent filing
of the complaint, which was closed as mistake of fact by the Investigation
Officer and the filing of the final report against the Respondent before the
Court concerned. He would further submit that the petition is not
maintainable in the facts and circumstances of the case and it is liable to be
dismissed.
10.By way of additional typed set of papers, the learned Counsel for
the Petitioners had furnished the details furnished by Paramakudi Taluk
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
Police Station to the petition filed by the Petitioners seeking details of the
case in Crime No.70 of 2018.
11.The learned Counsel for the Respondent also relied on the very
same information furnished by Paramakudi Taluk Police Station, in which it
has been stated that in Crime No.70 of 2018, the accused had not obtained
bail or anticipatory bail or station bail. Therefore, it is the contention of the
learned Counsel for the Respondent that it gives presumption that the police
had not acted fairly as per the Police Standing Order 566.2.
12.In the light of the particulars mentioned by the learned Counsel for
the Respondent, the vehement objection of the Respondent is accepted by
this Court, in the light of the facts of the case, which is distinguished from
the reported order of the learned single Judge of this Court in Crl.O.P.(MD)
No.5324 of 2021 (R.Thulasiram and another Vs. Chinnapandi) dated
08.04.2022.
13.In fine, this Criminal Original Petition is dismissed. The learned
Judicial Magistrate, Paramakudi is directed to dispose of the petition filed
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
by the Petitioners, if any, seeking dispensing with the personal appearance
of them. Consequently, connected Miscellaneous Petitions are closed.
Internet:Yes/No 10.11.2022
Index:Yes/No
mm
To
1.The Judicial Magistrate,
Paramakudi.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.15687 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
mm
Crl.O.P (MD) No.15687 of 2022
10.11.2022
https://www.mhc.tn.gov.in/judis
