Chinnapaiyan and Thangavlu vs Palaniappan

Bhaskaran, J.—The revision is directed against the order of the Chief Judicial Magistrate. Salem, overruling the preliminary objection raised by the petitioners herein to dismiss the private complaint filed by the Respondent herein against the petitioners, which was taken on file by the learned Judicial First Class Magistrate No. 1, Salem in C.C. No. 362 of 1982 and transferred to the Chief Judicial Magistrate, Salem and numbered as C.C. No. 40 of 1982.

The brief facts necessary for the disposal of this revision are as follows: The Respondent herein filed a private complaint on 22.10.1980 before the learned Judicial First Class Magistrate No. 1, Salem, against the petitioners herein, who were then working as Police Constables in Annathanapatti Police Station alleging that on 9.10.1980 at about 11.00 p.m. while he and his wife were passing through Annathanapatti Police Station to reach his house after visiting his aunt''s house, the petitioners, due to prior enmity way laid them, assaulted and caused injuries to them. His wife escaped from them and ran away from that place. Thereafter, the respondent was taken to the police station where he was further assaulted. On the next day, he got himself treated in the Government Hospital. His wife also got treatment for her injuries. For the aforesaid act of the petitioners, the respondent filed the private complaint before the Judicial First Class Magistrate, No. 1, Salem, for offences punishable under Ss.341, 355, 109, 354, 427, 323 and 326, I.P.C. The learned Magistrate forwarded that complaint to police for investigation on 22.10.1980. The Inspector of Police, Shevapet, after enquiry, submitted a report to Court on 16.3.1981 stating that the allegation in the complaint is false. He also issued a notice to the respondent on 21.3.1981. There are no materials available on record to show as to whether any order was passed by the learned Magistrate.

Thereafter, the respondent filed a second complaint on the same allegation before the learned Judicial First Class Magistrate, No. 1, Salem. In that complaint, he also mentioned the receipt of R.C. notice, served on him by the police on his previous complaint. He, therefore, requested the Court to take the complaint on file. He also enclosed the R.C. notice received by him from the police. The complaint is dated 24.3.1981. From the endorsement on the complaint, it is seen, on 26.3.1981, the (sic) petitioner/complainant?) was called absent and the same was posted on 27.3.1981 and on 27.3.1981, the learned Magistrate dismissed the complaint stating that the case was referred by police as false, the (sic) petitioner/complainant?) called absent and hence the petition is dismissed. The respondent also seems to have filed a petition for reconsideration of his complaint, which was also dismissed by the learned Magistrate on 28.3 1981. The reconsideration petition is not available on record but there is a copy of the order passed on the reconsideration petition. Thereafter, the respondent has filed a revision before the Sessions Judge, Salem against the order of the learned Magistrate, dated 27.3.1981 dismissing his complaint. The learned Sessions Judge rejecting the contention of the respondent that he presented the complaint on 24.3.1931, it was called but was dismissed on 27.3.1981 without examining him, held that the complaint was dismissed by the learned Magistrate because the respondent was absent when called in court, which is clear from the endorsement made by the learned Magistrate. Accordingly, he confirmed the order of learned Magistrate and dismissed the revision petition (Crl.R.P. No. 25 of 1981) on 28.10.1981.

Subsequently, the respondent filed a third complaint to the Judicial First Class Magistrate No. 1, Salem, on 26.11.1981 making the same allegations against the petitioners. In the complaint he alleged that his second complaint was prerented in Court on 24th March, 1981, that the same was entered in the court records and that there is entry in No. 12 Register regarding the stamps affixed by the respondent in his complaint. He also filed along with his third complaint an extract taken from No. 12 Register relating to 24.3.1981. The learned Magistrate, after recording sworn statement from the respondent, taken the complaint on file as C.C. Nos. 362 of 1982 and placed the papers to the Chief Judicial Magistrate, Salem, as allegations are made against police officers, following the High Court''s Circular. The Chief Judicial Magistrate, Salem, has taken the case on his file as C.C. No. 40 of 1982.

Before the learned Chief Judicial Magistrate, the petitioners herein have filed a preliminary objection contending that the previous complaint filed by the respondent was dismissed by the learned Judicial First Class Magistrate and the revision against the same has also been dismissed by the learned Sessions Judge, Salem, on 28.10.1982, that the respondent has exhausted all the remedies, that his further remedy is only to go to High Court against the order of dismissal and that therefore, the present complaint cannot be entertained. They further contended that the third complaint is barred by limitation. A counter was filed by the respondent to the preliminary objection contending that if a complaint is dismissed, the complainant can file a revision to the superior Court or present a fresh and subsequent complaint in the same Court and since the respondent''s earlier complaint was dismissed in his absence and not on merits, there is no bar for filing a fresh complaint on the same facts. As regards limitation, it is stated by the respondent that since his revision to the Sessions Court was dismissed only on 28th October, 1981, his present complaint, which was filed on 26th November, 1981, is within 28 days of the dismissal and as such, there is no delay in filing the fresh complaint sod hence the complaint is not barred by limitation. In view of the factual position that the complaint was filed within 28 days after the dismissal of the revision, the question of limitation has obviously and rightly been given up. The learned Chief Judicial Magistrate overruled the preliminary objection and held that the dismissal of the complaint for the non-appearance of the complainant is not a bar for a fresh complaint since such dismissal does not amount to either acquittal or discharge so as to hold that the rule of estoppel applies for filing a fresh complaint on the same allegation. Hence the present revision by the accused in the private complaint.

In this revision, it is submitted by the Learned Counsel for the petitioners that though there is no order available on record with regard to the order of the learned Magistrate on the first complaint, it must only be presumed that there must have been an order under S.203, Crl.P.C., dismissing the complaint and if really the learned Magistrate had ordered further enquiry, there would not have been a need for a second complaint. He further submitted that the order could not have been under S.249 or 256, Crl.P.C., and it must have been only under S.203, Crl.P.C., and therefore no second complaint can be entertained. In any event, it is submitted that the second complaint was dismissed and the same was also confirmed by the learned Seesions Judge and the respondent can have no remedy by way of further complaint on the same set of facts. In support of his contention, he relied on the following decisions: Ravinder Singh Vs. State of Haryana, , T.V. Sarma Vs. R. Meeriah and Others, ,and Bindeshwari Prasad Singh Vs. Kali Singh, .

The Learned Counsel for the respondent, who was the complainant, submitted that the earlier complaint was not disposed of on merits but it was dismissed only for the nonappearance of the complainant. Therefore there is no bar for a fresh complaint. In any event, a fresh complaint can be filed not only on new set of facts but on the same set of facts also for special reasons, which has to be treated as a protest complaint and therefore the same is maintainable. The order of the learned Sessions Judge is only against the dismissal of the complaint for default by the learned Magistrate. Therefore, when once the learned Magistrate after considering all the circumstances under which the earlier complaint was dismissed and fresh materials had taken cognizance of the ''fresh complaint, it cannot be said to be illegal. The preliminary objection is not sustainable and the learned Magistrate rightly rejected the same. Though the learned Magistrate considered the maintainability of the complaint under S. 300, Crl.P.C., it may not be strictly applicable to this case. He further submitted that the decisions cited by the Learned Counsel for the petitioners, in fact, support the case of the respondent. He also cited some more decisions.

In the decision reported in T.V. Sarma Vs. R. Meeriah and Others, it was held as follows:

The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent Court on a former occasion and finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata, against the prosecution. But this principle would equally apply to an issue of law also. The principle of issue estoppel has been invoked in criminal cases in order to cover cases where the plea of autrefois acquit will not be available because the crime with which the accused is charged in the later proceedings may not be the same crime of which he was acquitted earlier. Yet, it may be that the verdict of acquittal in the earlier proceedings might have been based on a finding, the consequence of which is that he must be acquitted of the charge in the later proceedings also, That is not autrefois acquit as the accused is not able to show that the crime charged is substantially the same crime on which a finding was given in the first verdict. Such a situation is covered by the principle of issue estoppel or res judicata.

It was also held in that decision that where in a prior proceeding it was held that the accused cannot be proceeded against for want of sanction and the prosecution against some of the accused is also barred by limitation, such a decision would be final and it would be binding on the parties in the subsequent proceedings. As observed in that decision, the principle of res judicata will apply only with regard to a finding rendered in a former trial. This decision, relied on by the Learned Counsel for the petitioners, will not apply to the facts of our case because in this case there was no trial and the trial will commence only after issue of process to the accused after taking the complaint on file. In the present case, the previous complaint was dismissed for default of the complainant even before taking the complaint on file. Therefore, that decision will not apply to this case.

Another decision relied on by the Learned Counsel for the petitioners reported in Ravinder Singh Vs. State of Haryana, , also will not apply to this case. In that decision it was held by the Supreme Court as follows:

In order to invoke the rule of issue estoppel, not only the parties in the two trials must be the same but also the fact in issue proved or not in the earlier trial, must be identical with what is sought to be reagitated in the subsequent trial.

This decision also proceeds on the footing of a decision rendered in an earlier proceeding in a trial.

In the decision reported in Bindeshwari Prasad Singh Vs. Kali Singh, , a private complaint was dismissed under S.203, Crl.P.C. Thereafter an application to recall the dismissal order was allowed. This was objected to contending that the Magistrate has no jurisdiction to recall his order of dismissal. The Supreme Court upheld this objection and held that that Magistrate has DO power to recall his dismissal order passed under S.203, Crl.P.C. It was also held by the Supreme Court in that decision that the case is different if a second complaint is filed and that such a complaint can be filed not only on fresh facts but even on the previous facts if a special case is made out. This decision is more in support of the contention of the respondent. A complaint can be dismissed under S. 203, Crl.P.C., only after considering the statement on oath of the complainant and the result of the inquiry of investigation made under S. 202, Crl.P.C., and if the Magistrate is of opinion that there is no sufficient ground for proceeding further with the complaint. Such a dismissal under S. 203, Crl. P.G., cannot be reopened. Thus the dismissal of the complaint under S. 203, Crl.P.C., is based on the conclusion arrived at by the Magistrate on the materials placed before him that there is no sufficient ground for proceeding further with the complaint. In the instant case, the complaint was dismissed not on the basis of any conclusion arrived at by the Magistrate about the merits of the case but simply on the basis that the complainant was absent. Moreover, even the dismissal of a complaint under S.203, Crl.P.C., will not be a bar for a second complaint on the same set of facts provided a special case is made out as held in the above cited decision.

In the decision reported in A.S. Gauraya v. S.N. Thakur 1986-2 S.C.C. 709, it was held that after dismissal of a complaint for nonappearance of the complainant or discharge or acquittal, the same cannot be revived by the Magistrate. But, a second complaint is permissible in law if it could be brought within the period of limitation. In the decision reported in Bhagwant Singh Vs. Commissioner of Police and Another, , it was held by the Supreme Court as follows:

In a ease where the Magistrate to whom a report is forwarded under sub S.(2) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.

In the decision reported in Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, the Supreme Court has pointed out that an enquiry under S. 202, Crl.P.C., is not in the nature of a trial and that the trial in respect of any offence can commence only after process is issued to the accused. It was further held that the object of the enquiry under S, 202, Crl.P.C., is ascertainment of the facts whether the complainant complained any valid foundation calling for issue of process to the person complained against or whether it is a baseless one and therefore having regard to the nature of the proceedings under S. 202, Crl.P.C., it is difficult to hold that there is a legal bar based on the principle of issue-estoppel to proceed against a person complained against on the same material if the Court has dismissed the complaint under S. 203, Crl.P.C.

In the decision reported in Chandrasekhera Pandian v. Muthukaruppa Thewar 1983 L.W. (Crl.) 347, the facts are, a complaint was preferred by the respondent at the police station and a case was registered. Investigation was taken up and after completion of the investigation, the police submitted a report as a mistake of fact before the Magistrate after serving Referred Charge sheet notice to the respondent. The Magistrate accepted the Referred Charge sheet and passed a final order treating it as a mistake of fact. No protest petition or any protest complaint was filed against the order. The respondent again preferred a complaint alleging the same facts and offences as in the police complaint before the Judicial Second Class Magistrate. The Magistrate took cognizance of some offences and numbered the same to start an enquiry under S. 202, Crl.P.C. To quash the same, petition was tiled in the High Court invoking the inherent powers or the High Court under S. 482, Crl.P.C. The High Court held as follows :

In this case, on the direction given by the Magistrate under S. 156(3), Crl.P.C., the police investigated the case and submitted the Referred charge-sheet as a mistake of fact. This has been accepted by an order dated 17th December, 1981 by the learned Magistrate. There is nothing on record to show that the investigation was perfunctory or not conducted with due diligence. The respondent had not come to Court in his belated complaint before the Magistrate with clean hands in as much as he has added four women as ace used, whose names do not find a place in his original complaint. In spite of these circumstances, I am not inclined to interfere at this stage and quash the proceedings pending against all the petitioners as the Magistrate had thought fit to take the complaint on file and issue notice to the accused. Still, so far as the later implication of four women as accused is concerned, it is clearly an after thought of the respondent. Hence, the proceedings relating to accused 6 to 9 in the complaint have to be quashed. The case against the rest of the accused shall proceed.

In the light of these decisions, if we consider the facts of our case, it is seen that first of all the complaint is not dismissed under S. 203, Crl.P.C. Even if such a complaint is dismissed, there is no bar for a fresh complaint being filed if special set of facts are made out. The principle of estoppel will apply only if in a former proceeding, the accused was tried and he was discharged or acquitted. The principle of estoppel will not apply where the complaint was dismissed for the absence of the complainant even before trial was started. No doubt, the revision was dismissed by the Sessions Court en the basis that the dismissal of the first complaint was justified for the non-appearance of the complaint. But that does not in any way affect the power of the complainant to file a fresh complaint if he makes out a special case, on the same set of facts. In the instant case, a special circumstance was made out in the fresh complaint. The learned Magistrate has dismissed the earlier complaint as if it was filed on 26th March, 1981, and the complainant was absent on that date and on the subsequent date though the complainant/respondent contended that the complaint was filed only on 24th March, 1981. In the fresh complaint he has filed materials along with the complaint to show that the complaint was actually filed only on 24th March, 1981. It is also to be noted that the police has sent a report in the first complaint that the same is false. II the Magistrate has to pass an order accepting the report of the police officer, he should have given a notice to the complainant before acting upon the report of the police officer as has been held by the Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, . There is no material to show that the complainant was put on notice and he was heard. Therefore, when the complainant submitted a fresh material that his second complaint was not on 26th March, 1981 as held by the Magistrate but only on 24th March, 1981, the learned Magistrate has taken that new material into consideration and examined the complainant. Therefore, it cannot be said that the third complaint taken on file by the learned Magistrate is without jurisdiction. It is also not necessary at this stage to quash the proceedings without going into the merits of the case. The learned Chief Judicial Magistrate is justified in rejecting the preliminary objection, and it does not call for interference by this Court.

In the result, the revision fails and the same is dismissed. Records shall be despatched to the trial Court for expeditious disposal of the case.