NOORDHIN v. KADEEJA — 1985 DIGILAW 265 (KER)

Judgment :- 1. Both cases were filed by the same person (one Noordhin) under S.482 of the Criminal Procedure Code. The only respondent in Crl. M.C. 245 of 1984 is one Kadeeja. In Crl. M.C. 901 of 1984 respondents are Kadeeja and her minor son Kunhi Mayan aged 3. I will be referring to them hereinafter as petitioner and respondents, wherever necessary or by their names. 2. Kadeeja was divorced by her husband. Her case is that thereafter intimacy started between her and Noordhin which developed into free sex on the assurance of Noordhin that he will marry her. Kunhi Mayan was born out of that relationship. It is also her case that on the assurance that a new gold chain will be purchased and given to her, Noordhin got her gold chain, but misappropriated the same and cheated her. She filed a criminal complaint against him before the Addl. Judicial First Class Magistrate I, Tellicherry on 26-12-1983 for offences punishable under S.406 and 417 of the Indian Penal Code. After an enquiry under S.202 of the Crl. Procedure Code the Magistrate took the complaint to file as C.C.10 of 1984 and a copy of it is filed as Annexure A. She filed an earlier complaint against him on the same cause of action on 20-12-1983 as Crl. M,P. 2576 of 1983. After recording the sworn statement of Kadeeja the complaint was dismissed under S.203 of the Crl. P.C. and copy of the order is Annexure B. Annexure B was not mentioned in Annexure A. 3. The case of the petitioner is that Annexure A is an abuse of the process of court and Crl. M.C. 245 of 1984 was filed to quash the same. 4. In Crl. M.C. 245 of 1984 the proceedings in Annexure A was stayed. Thereafter first respondent Kadeeja filed M.C. 24 of 1984 before the same court under S.125 Crl. P.C. against the petitioner for maintenance of Kunhi Mayan alleging petitioner is his father. Crl. M.C. 901 of 1984 is also under S.482 Cr. P.C. and the prayer is to quash M.C. 24 of 1984. 5. In both the cases I have heard both sides at length. Crl. M.C. 901 of 1984 has only to be dismissed straightaway. M.C. 24 of 1984 does not involve any abuse of process of court in order to attract S.482 of the Cr. P.C. The stay in Crl. P.C. and the prayer is to quash M.C. 24 of 1984. 5. In both the cases I have heard both sides at length. Crl. M.C. 901 of 1984 has only to be dismissed straightaway. M.C. 24 of 1984 does not involve any abuse of process of court in order to attract S.482 of the Cr. P.C. The stay in Crl. M.C. 245 of 1984 was only against Annexure A which is a criminal complaint filed for offences punishable under S.406 and 417 of the I.P.C. It had nothing to do with the paternity of the child or its claim for maintenance. The only course open to the petitioner was to contest M.C. 24 of 1984. No question of securing the ends of justice is also involved in quashing M.C. 24 of 1984. 6. But Crl. M.C. 245 of 1984 poses some question of law which will have to be considered. All these legal questions are based on Annexure B by which the criminal complaint filed by Kadeeja on 20-12-1983 was dismissed under S.203 Criminal Procedure Code after an enquiry under S.202. Annexure A was contended to be an abuse of process of court and not maintainable on three grounds (1) On the doctrine of issue estoppel, (2) 'Double jeopardy' or "autrefois acquit" and (3) Second complaint could be entertained only under exceptional circumstances when a complaint under the same cause of action has been dismissed under S.203. I think that the first two contentions are not worth consideration and the only contention which deserves to be dealt with on the merits is the third one. 7. Contentions 1 and 2 shall be considered together. A second criminal trial may be prohibited on legal and equitable grounds. Legal ground is 'double jeopardy' or 'autrefois acquit' covered by S.300 of the Criminal Procedure Code and the equitable ground is 'issue estoppel'. Before dealing with these points straightaway it is necessary to consider the effect of the dismissal of a complaint under S.203 of the Crl. Procedure Code after an inquiry under S.202. A decision on that question is necessary because in order to apply the legal bar of 'double jeopardy' or the equitable bar of 'issue estoppel' there must have been a formal trial and a conviction or acquittal. Procedure Code after an inquiry under S.202. A decision on that question is necessary because in order to apply the legal bar of 'double jeopardy' or the equitable bar of 'issue estoppel' there must have been a formal trial and a conviction or acquittal. The question is whether an inquiry under S.202 could be treated as a trial and the dismissal of the complaint under S.203 could be treated as acquittal after trial. 8. The Criminal Procedure Code defines inquiry as every inquiry other than a trial. What is contemplated under S.202 is only a preliminary inquiry into the complaint and not a trial. 'Accused does not come into the picture before process is issued under S.204 of the Code. The very question for consideration in an inquiry under S.202 is whether the accused should be called upon to face the accusation. Accused has no right to take part in the proceedings in an inquiry. The object of the inquiry is only to enable the magistrate to scrutinise the allegations in the complaint carefully in order to prevent the person or persons named as accused being called upon to face an obviously frivolous complaint. The inquiry is to find out what material is there to support the allegations in the complaint. It can in no sense be characterised as a trial because in law there can only be one trial for an offence What is to be decided in the inquiry is only whether there are sufficient grounds for proceeding and not whether there is sufficient ground for conviction. The latter question could be considered only in a trial and not in an inquiry. Inquiry under S.202 is limited only to the ascertainment of the truth or falsehood of the allegations in the complaint on the materials placed by the complainant in order to find whether there is prima facie ground to issue process and for deciding the question purely from the point of view of the complainant without at all considering any defence that the accused may have. Parties are not joining issue and there is no determination of such issues on the merits. It is clear that an inquiry under S.202 is not a trial and dismissal of the complaint is not an acquittal within the meaning of S.300 of the Criminal Procedure Code. Parties are not joining issue and there is no determination of such issues on the merits. It is clear that an inquiry under S.202 is not a trial and dismissal of the complaint is not an acquittal within the meaning of S.300 of the Criminal Procedure Code. If so 'double jeopardy' or "autrefois acquit" is out of question for the simple reason that there had been no trial and acquittal. S.300 (1) of the Crl. Procedure Code reads: "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of S.221, or for which he might have been convicted under subsection (2) thereof." 9. Art.20 (2) of the Constitution also provides that no person shall be prosecuted and punished for the same offence more than once. There can be only one trial in respect of any offence and a trial can commence only after process is issued to the accused. A person could be said to be an accused only thereafter. An enquiry under S.202 is a pre-process stage preliminary inquiry and it is not a proceeding between the complainant and the accused but only one between the complainant and the magistrate. In Dr. S.S. Khanna v. Chief Secretary, Patna and another (AIR 1983 Supreme Court 595) it was held: "An inquiry under S.202 is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial commences only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under S.202 he does so not as an accused but as a member of the public. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Even if he participates in the proceedings under S.202 he does so not as an accused but as a member of the public. The object of the inquiry under S.202 is the ascertainment of the fact whether the complainant has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The Section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under S.202." 10. If so the bar under S.300 of the Code could be safely ruled out. For the same reason 'issue estoppel' also will have to go. The only estoppel, that could be pleaded in criminal trial is issue estoppel. It is really a well known doctrine which prohibits fresh litigation on issues of fact or law which were already decided between parties in a previous litigation. Such settlement of issues need not necessarily be on the same set of facts. Even in a trial on different set of facts between the same parties a decision on an issue of fact or law in a previous litigation could operate as estoppel if the matter is concluded on that point by the previous litigation. That principle is based on public policy. But parties must have joined issue on that particular point or points in a trial and the issue or issues must have been decided on evidence in a trial. What is decided in a preliminary inquiry and the consequent dismissal of the complaint under S.203 of the Crl. Procedure Code cannot operate as issue estoppel for the simple reason that there was no trial., there was no joining of issue between a complainant and an accused and no decision on evidence by the Court. 11. What is decided in a preliminary inquiry and the consequent dismissal of the complaint under S.203 of the Crl. Procedure Code cannot operate as issue estoppel for the simple reason that there was no trial., there was no joining of issue between a complainant and an accused and no decision on evidence by the Court. 11. The petitioner's counsel relied on K. Karunakaran v. Rajendran (1985 KLT 361) wherein Radhakrishna Menon, J. held that the complainant in the case which was the subject matter of that decision was debarred on the principle of issue estoppel from filing a second complaint on the same set of facts on account of the dismissal of a previous complaint under S.203 Crl. P.C. But it appears that AIR 1983 S.C. 595 was not brought to the notice of the Judge. In that decision (A.I.R.1983 S.C. 595) the following passage from AIR 1962 SC 876 was quoted with approval: "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, 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." 12. An absolute bar is one thing and a conditional bar is something else. An absolute bar of issue estoppel means that when a complaint is dismissed under S 203 no fresh complaint on the same facts could be entertained under any circumstances. What was held is that a dismissal under S.203 is no bar to the entertainment of a second complaint on the same facts. That means "issue estoppel" is not there. The bar is only under some other considerations and not on account of issue estoppel. In order to attract issue estoppel there must have been a trial in which the parties joined issue on the particular question of fact or law and the court must have entered a decision. Therefore it is evident that no question of issue estoppel is also there on account of dismissal of a complaint under S.203. 13. In order to attract issue estoppel there must have been a trial in which the parties joined issue on the particular question of fact or law and the court must have entered a decision. Therefore it is evident that no question of issue estoppel is also there on account of dismissal of a complaint under S.203. 13. Then the question is only regarding the exceptional circumstances under which alone a second complaint could be entertained. Referring to the exceptional circumstances enumerated in AIR 1962 SC 876 it was held in AIR 1983 SC 595: "As rightly commented by the Law Commission, the circumstances mentioned by the court in the above passage cannot be exhaustive of all the circumstances where a second complaint can be entertained. A second complaint may be entertained in other appropriate cases too, though it should be for "extra-ordinary reasons". That decision went on to say that having regard to the nature of the proceedings under S.202 of the code, it may be 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 a complaint under S.203. 14. What the exceptional circumstances are is definitely a matter to be considered on the facts of each case. In that respect this case and 1985 KLT 361 have no comparison. That was a case in which the previous complaint on the same facts after an inquiry under S.202 was dismissed by the same Magistrate .not only for want of sanction under S.197 but also as frivolous, vexatious and false and the second complaint was taken cognizance and process issued ignoring these aspects. Here the allegation is that the second complaint was filed without disclosing the fact of having filed the first complaint and that it was dismissed. It is said that but for the suppression the second complaint would not have been entertained. The main item of abuse of process alleged is this suppression. 15. The version of the respondent is that her sworn statement in the first complaint was recorded in open court and hence she was shy to swear to the sexual connection and that even while dismissing that complaint the magistrate expressed his inclination to entertain a second complaint with proper allegations. 15. The version of the respondent is that her sworn statement in the first complaint was recorded in open court and hence she was shy to swear to the sexual connection and that even while dismissing that complaint the magistrate expressed his inclination to entertain a second complaint with proper allegations. Though that allegation is not supported by any evidence the fact remains that the first complaint was dismissed mainly because she did not speak to the sexual connection and pregnancy at the hands of the petitioner even though the complaint contained such allegations. This is evident from Annexure B which shows that she was disbelieved mainly on the ground that it is too much to believe that a woman will entrust ornaments with a stranger without knowledge and consent of her relations. It was before the same magistrate that the second complaint was filed just after six days. There is no allegation against the magistrate personally. A copy of the first complaint has not been filed also. 16. There is nothing to show that allegations in both the complaints are in all respects identical. It is for the petitioner to establish that both complaints were identical and there was no exceptional circumstances justifying cognizance of the second complaint because it is he who seeks the inherent jurisdiction of this court on the ground that the second complaint was taken cognizance without any exceptional circumstance as laid down in AIR 1962 S. C. 876 and AIR 1983 S. C. 595. Want of exceptional circumstance in taking cognizance alone is the only ground that is available to the petitioner and he has not succeeded in establishing the same. Especially in view of the facts and circumstances pointed out by the respondent in support of the contention that it was under exceptional circumstances that the second complaint was taken to file, I am not in a position to find that taking cognizance was an abuse of process of court which resulted in failure of justice. 17. There is no dispute between the parties that the respondent filed two private complaints on the same facts against the petitioner, one on 20-12-1983 and the other on 26-12-1983, before the same magistrate who dismissed the first one under Annexure B on the ground that he is not satisfied that a case is made out for trial against the petitioner. There is no dispute between the parties that the respondent filed two private complaints on the same facts against the petitioner, one on 20-12-1983 and the other on 26-12-1983, before the same magistrate who dismissed the first one under Annexure B on the ground that he is not satisfied that a case is made out for trial against the petitioner. The only reason in support of that conclusion, as seen from Annexure B, is that the respondent did not speak anything about the alleged sexual connection with the petitioner and the consequent pregnancy when her sworn statement was recorded and therefore the magistrate thought that the alleged entrustment of ornaments with a stranger without the knowledge of relations is not probable. Within six days the second complaint was filed before the same magistrate and after again recording her sworn statement the complaint was taken to file. There is no case that the magistrate went out of the way to help the complainant. The only allegation is that the second complaint happened to be taken to file on account of the suppression of the first one. That means the magistrate took cognizance of the second complaint because he was unaware of the first complaint and its dismissal and that was occasioned only by the suppression. Ordinary course of natural events, human conduct and public and private business show that in the ordinary course the magistrate must have been aware of the previous complaint and its dismissal and the second complaint was taken to file with such awareness. When a judicial act of taking cognizance is admitted to have been performed there is the presumption under S.114(3) of the Evidence Act that it has been regularly performed. That means in taking cognizance the magistrate was satisfied of the exceptional circumstances. It is not necessary to pass a considered order while taking cognizance. It is for the petitioner to allege and prove that exceptional circumstances were absent and cognizance of the second complaint is an abuse of process which resulted in miscarriage of justice. He has not produced a copy of the first complaint to convince the court that the second complaint is a true copy of the first or that there were no exceptional circumstances. Para.23,24 and 25 of 1985 KLT. He has not produced a copy of the first complaint to convince the court that the second complaint is a true copy of the first or that there were no exceptional circumstances. Para.23,24 and 25 of 1985 KLT. 361 show that basing on AIR 1962 SC 876 and other decisions that decision itself recognised the fact that the dismissal of a complaint under S.203 of the Crl. Procedure Code by itself is no bar to entertain a second complaint on the same facts, but it could be had only in exceptional circumstances. In that case, for reasons recorded, it was found that there were no such exceptional circumstances and hence taking cognizance of the second complaint was bad. Here the position is different. Interference under S.482 of the Code could be had only if abuse of the process of court or the necessity of otherwise securing the ends of justice is established. There is no such evidence Both the petitions are dismissed.