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  1

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  2

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  3

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: 5

“(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  6

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  11

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  12

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  14

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  15

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.

......................J. (G.S SINGHVI)

.......................J. (ASOK KUMAR GANGULY)

New Delhi January 28, 2010

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