Ayyavu Konar vs Chelliah

Maheswaran, J.—This appeal by a private party is against the judgment of the learned Chief Judicial Magistrate, Madurai, acquitting the Respondent against whom a complaint has been filed u/s 500 I.P.C.

The allegation against the Respondent was that he gave a complaint on 18th January, 1977 to the Sub Inspector B-4 Police Station at Madurai, alleging that the Appellant is a drunkard and that he is heaping bones of human skeleton and other articles before the house of the Respondent, that such a complaint was given on account of prior animosity, that the police have found the complaint to be false, and that on account of this complaint, his reputation in the eyes of the public was lowered. This complaint was taken on file u/s 500 of I.P.C. But the learned Magistrate acquitted the Respondent on the ground that the complaint that was filed before him was not dated 18th January, 1977, but another complaint. Ex. P1, which was filed before the Superintendent of Police, Madurai, on 16th January, 1977, and as the complaint in respect of the allegations which were defamatory was not before him, the Respondent will not be guilty of the offence u/s 500, I.P.C, though the allegations in Ex. Pl are per se defamatory.

In this appeal, learned Counsel Mr. Arunachalam, appearing for the Appellant, challenges the order of acquittal on the ground that what has been filed before Court is Ex. Pl and that the defamatory matter is contained only in Ex. P1 and that there are no two complaints and that the Court below was wrong in assuming that there are two complaints. According to Mr. Arunachalam, the complaint that was given by the Respondent to the Superintendent of Police was forwarded to the Sub-Inspector of Police and an enquiry was made on that complaint which was ultimately found to be false by the police. But, on that aspect there are no enough materials though my attention was drawn by Mr. Arunachalam to the endorsement made on Ex. P1.

But, Mr. Sriramulu, learned Counsel appearing for the Respondent raised another point of law, namely, that there is evidence even in the complaint preferred by the Appellant before the Court that an earlier complaint alleging same facts against the Respondent was filed and was dismissed by Court and therefore, a second complaint on the same allegations is not maintainable. The records in that case were sent for and it is seen from the records that another complaint was filed, but it was dismissed. The Magistrate passed the following laconic order: ''''Complainant called-absent. Dismissed".

According to Mr. Sriramulu, this is a dismissal u/s 203 Code of Criminal Procedure, and a second complaint is maintainable only in very exceptional circumstances and such circumstances have not been made out. My attention was invited by the learned Counsel for the Appellant to Pramatha Nath Talikdar v. Saroj Raujau Sarkar, (1964) M.L.J. (Cri.) 281 where the Supreme Court has held that an order u/s 203, Code of Criminal Procedure, is however no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish, or where the new facts which would not, with reasonable diligence, have been adduced. It is unfortunate that the Magistrate has passed an order in such a cavalier fashion.

u/s 203 of Code of Criminal Procedure, it is incumbent that the Magistrate should apply his mind to the statement of the complainant and of his witnesses. He most also briefly record his reasons for dismissing the complaint. He has to form an opinion that there is no sufficient ground for proceeding. He has to judicially apply his mind, and it is apparent that he has not done so. Bindeshkari Prasad Singh v. Kali Singh, 1976 L.W. (Cri.) 190 was a case where the Magistrate dismissed a complaint u/s 203, Code of Criminal Procedure, on the ground that the complainant was absent and did not show any interest in the enquiry ordered by the Court and, recalled that order and took cognisance of the case and summoned the accused later and issued processes. The Supreme Court held that the order, even if there be one, recalling, the order dismissing the complaint was clearly without jurisdiction and that subsequent proceedings following upon and recalling the said order, would fall to the ground including the order summoning the accused which must be deemed to be a nullity and destitute of any legal effect. The counsel for the Respondent therein contended that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. But, the Supreme Court did not agree with that contention as there was no fresh complaint and in that context the Supreme Court observed that a second complaint can lie only upon fresh facts or even on previous facts only if a special case is made out. If the Magistrate has misdirected himself and has dismissed a complaint u/s 203, Code of Criminal Procedure, without applying his mind, it could be said that he has acted erroneously. However, an erroneous order u/s 203, Code of Criminal Procedure, will not give rise to a right to file a second complaint unless a special case is made out if the second complaint is on the same facts. Under those circumstances, the second complaint will be barred.

On the merits, it is pointed out that the lower Court has come to the conclusion that the materials contained in Ex. PI are per se defamatory and therefore, the Court was wrong in not convicting the accused u/s 500 , I.P.C. But then it is pointed out by the Court below that the complaint which is alleged to have been given to the Sub-Inspector of Police on 18th January, 1977, was not before Court and what was now marked as Ex. P1 is the complaint given to the Superintendent of Police on 16th January, 1977. As pointed out already by the learned Counsel for the Appellant, it is Ex. P1 that has been forwarded to the Sub-Inspector and the Appellant has made a mistake in the box while he stated that he has given a complaint to the Sub Inspector on 18th January, 1977. It is only in that mistaken belief that he has summoned that complaint from the police also. But then on that aspect, we do not have any conclusive evidence as the Sub-Inspector has not been examined.

It is no doubt true that the Respondent has stated in Ex. Pl that the Appellant, who is his neighbour is giving him all troubles during night after consuming liquor and that he is the owing bones and other articles before his house. But then, the learned Counsel for the Respondent has pointed out that he has only asked for the protection of the police under Ex. P1, that even assuming that Ex. P1 is a complaint if any allegations against the Appellant are made and are found to be false, it only disclosed an offence of giving false information to a public officer or of making a false accusation and will not amount to defamation within the meaning of Section 500, I.P.C. and simply because some portion of Ex. P1 is found to be defamatory, it cannot be said that the Respondent is guilty of the offence u/s I.P.C, because under the 8th Exception to Section 499. I.P.C, it is no defamation to prefer in good faith an accusation against any person to any of those who have lawful authority with respect to the subject-matter of accusation. The Respondent has complained in good faith to the police officer and has merely asked for protection from the Appellant. The order of acquittal therefore is correct and is confirmed. The appeal fails and is dismissed.