K. KARUNAKARAN v. RAJENDRAN — 1985 DIGILAW 87 (KER)

Judgment :- 1. A petition under S.482 and 397(1), Crl. Procedure Code. The petitioner seeks to quash C. C.18 of 1985, on the file of the Chief Judicial Magistrate, Trivandrum as being an abuse of the process of court. 2. The facts lie in a narrow compass: 3. The petitioner is the Chief Minister of Kerala. C, C.18 of 1985 is the complaint filed by the respondent against the petitioner. The sum and substance of the complaint is this. For his private and personal visits to Bombay on the 30th November 1983 and 2nd December 1983 (and also for his return trips), the petitioner utilised the "Government Exchange Orders" to purchase the plane tickets. The plane ticket charges were drawn from the public exchequer, it is alleged, on the fraudulent and dishonest misrepresentation that he went to Bombay on official business. The petitioner has thus committed the offence of cheating, punishable under S.420 I. P. C. This complaint, filed on 12th May, 1984 was numbered as Crl. M.P.180 of 1984. 4. The Chief Judicial Magistrate forwarded this complaint to the Additional Judicial Magistrate of the 1st Class, Trivandrum-1, for conducting an enquiry under S.202, Crl. P. C. The 1 st Class Magistrate examined three witnesses. Taking into account the said evidence as also the other circumstances, the 1st Class Magistrate submitted a report to the Chief Judicial Magistrate on 14-5-1984. The Chief Judicial Magistrate considered the evidence and the report of the Judicial Magistrate of the 1st Class and passed an order dismissing the complaint, Crl. M. P.180 of 1984, under S.203, Crl.P.C. The Chief Judicial Magistrate in the said order has categorically and positively found that the complaint is not maintainable in law for want of sanction under S.197 (1), Crl. P. C. This is what the Magistrate has stated in the order in regard to this aspect of the case: "Ministers of Central and State are public servants.It is settled that a minister is a public servant. The accused being the Chief Minister of Kerala State, he is thus a public servant who is removable by the State Government. Hence S.197, Crl. P. C. is applicable to the present accused also. The accused being the Chief Minister of Kerala State, he is thus a public servant who is removable by the State Government. Hence S.197, Crl. P. C. is applicable to the present accused also. It is the case of the complainant that the accused 'misused his official capacity as Chief Minister of Kerala to get the tickets from the Indian Airlines for his journey from Trivandrum to Bombay and back to Cochin. The object of this section is primarily to guard against vexatious proceedings against public servants. Before such criminal proceedings are launched against public servants, it has been considered proper that the well considered opinion of a superior authority to be obtained. The bar imposed by the section is absolute. The bar will be removed when sanction is given by the Government. The protection given to public servant is thus limited by making the sanction of the Government a condition precedent to the launching of a prosecution. The section regulates the competence of the court and bars its jurisdiction in certain cases except in compliance therewith. Sanction is necessary only when a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. It is argued by the complainant that the present accused committed the offence not by his acting or purporting to act in the discharge of his official [duty and hence no sanction is necessary. From the evidence it is seen that the ticket for the journeys were purchased by the special secretary to the Chief Minister. The act of the Chief Minister cannot be distinguished as official act or personal act. Anyhow it is the case of the complainant that he has misused his office for the purchase of tickets and hence it is to be held that he purchased the ticket while acting or purporting to have acting his official duty as Chief Minister of Kerala. The official duty and personal duty of the Chief Minister of State cannot be distinguished. In such a case sanction of the Government has to be obtained to prosecute such an official. Here in the instant case the complainant [failed to get sanction for the presentation of the accused. For this reason alone this complaint should fail". The official duty and personal duty of the Chief Minister of State cannot be distinguished. In such a case sanction of the Government has to be obtained to prosecute such an official. Here in the instant case the complainant [failed to get sanction for the presentation of the accused. For this reason alone this complaint should fail". The Chief Judicial Magistrate, however, was not prepared to throw out the complaint on this technical ground alone. He went into the merits of the case, and after taking note of the ingredients of S.415, I.P.C. which defines "cheating" and with reference to the facts of the case, held as follows: "In order to constitute cheating there must be deception and fraudulent or dishonest inducement. So the prosecution has to establish that at the time when the accused made the alleged representation that he made it deliberately and with the intention to deceive. In short in order to constitute an offence of cheating, it must be established that the accused deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. It is thus obvious that dishonest intention on the part of the accused at the time of making the representation to the complainant on the basis of which complainant parts with his property is an essential ingredient of the offence. In other words mens rea on the part of the accused must be established. 16. Here in the instant case, the complainant has no case that the accused deceived him dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. The complainant also failed to establish that the accused deceived any other person dishonestly inducing them to part with any property in their favour which they would not have parted but for the deception played on them." 5. After discussing the evidence tendered by C.W.1 to C.W.3, the Chief Judicial Magistrate has held: "Thus it can be seen from the evidence that no money was utilised from the public exchequer for the said journeys performed by the Chief Minister on 30-11-83 and 1-12-83 from Trivandrum to Bombay and back to Cochin, and for the journeys performed on 2-12-83 and 3-12-83 from Trivandrum to Bombay and back to Cochin. It is also in evidence that the Special Private Secretary of the Chief Minister has remitted the ticket charges for the said journeys to the General Administration Department on 10-1-84 for the purpose of payment along with other journeys which will be paid from that Department in the usual course. On a perusal of the evidence adduced by the complainant it can be clearly seen that no money was used from the public exchequer for the journeys from Trivandrum to Bombay and back to Cochin by the Chief Minister as alleged in the complaint. 19. The complainant failed to adduce any piece of evidence in support of his complaint. On a perusal of the records, the sworn statement of the complainant and the statement of witnesses in the enquiry it appears to me that the allegation against Sri. K. Karunakaran, Chief Minister of Kerala is false, frivolous and vexatious. In short, I am of the opinion that there is no sufficient ground for proceeding against the present accused and therefore I dismiss this complaint under S.203 Cr. P.C." 6. This order (Ext. P2) is dated 26-5-1984. 7. The Chief Judicial Magistrate thus has positively found (1) that the complaint Crl.M.P.180/1984, is not maintainable in law for want of sanction under S.197(1),Crl. P.C.; (2) that, not only that the complainant failed to establish the allegations in the complaint but the allegations against Sri Karunakarn, Chief Minister (petitioner herein) are "false, frivolous and vexatious" also. 8. Thereafter the same Chief Judicial Magistrate entertained the same complaint filed by the same complainant, as Crl.M.P.1320 of 1984. After examining the 3 persons, examined by the 1st Class Magistrate to whom the Chief Judicial Magistrate had forwarded the previous complaint for enquiry and report, and Sri E.K.Nayanar, the opposition leader, the Chief Judicial Magistrate passed the following order: "Take on file in C. C. 18/85 under S.420, I.P.C., Issue summons to the accused properly." The order is dated 22-2-1985. 9. The petitioner thereupon has filed this petition under Ss.482 and 397(1) of the Code of Crl. Procedure to quash the complaint as being an abuse of the process of the Court. 10. The learned Advocate-General submitted that the complaint which has been taken cognizance of by the Chief Judicial Magistrate (C.C.18/1985) is liable to be quashed for the following reasons: (1) On the principle of Issue estoppel the present proceedings are liable to be quashed. Procedure to quash the complaint as being an abuse of the process of the Court. 10. The learned Advocate-General submitted that the complaint which has been taken cognizance of by the Chief Judicial Magistrate (C.C.18/1985) is liable to be quashed for the following reasons: (1) On the principle of Issue estoppel the present proceedings are liable to be quashed. The same point, namely that, the petitioner is liable to be proceeded against under S.420, I.P.C. was heard and determined in favour of the petitioner once before, as is seen from the order of the Chief Judicial Magistrate dated 26- 5-1984 (Ext. P2) dismissing the complaint, Crl. M.P.180/84. (2) A second complaint on the same set of facts is generally not entertainable because it will be an abuse of the process of the court, and (3) The complaint is not maintainable for want of sanction under S.197 (1) (b) of the Code of Crl. Procedure. 11. Before I deal with these matters I shall state the law. 12. Issue estoppel is a well known doctrine which controls the relitiga-tion of issues (whether of fact or law) which are settled in a previous litigation between parties. In short, the findings on an issue of fact or law in a previous criminal proceedings preclude the re-agitation of the same issue based on same facts in any subsequent litigation. This principle of law is based on grounds of public policy. This is different from the principle of 'double jeopardy' or 'autrefois acquit'. As held in Marz v. The Queen, 96 C. L. R.62, "The law which gives effect to issue estoppel is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel still less with the process of reasoning by which the finding was reached in fact ...It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against another". The Supreme Court taking note of this principle with approval, has held thus, in Manipur Administration v. Bira Singh, A.I.R. 1965 S. C. 87: "It is therefore, clear that S.403. (corresponding to S.300 of the new Crl. P. C.) of the Crl. The Supreme Court taking note of this principle with approval, has held thus, in Manipur Administration v. Bira Singh, A.I.R. 1965 S. C. 87: "It is therefore, clear that S.403. (corresponding to S.300 of the new Crl. P. C.) of the Crl. Procedure Code does not preclude the applicability of this rule of issue estoppel. The rale being one which is in accord with sound principle and supported by high authority and there being a decision of this Court (A. I. R.1956 S. C. 415) which has accepted it as a proper one to be adopted, we do not see any reason for discarding it". 13. The same view has been reiterated by the Supreme Court in Lalta v. State of U.P., A.I.R.1970 S.C. 1381. This Court also expressed the same view regarding the applicability of the principles of issue estoppel. (Vide 1971 K.LT.204 and 1974 K.L.T 495.) 14. The Supreme Court in "Lalta" case has even gone to the extent of saying that a finding of fact by a competent court on a former occasion, in favour of an accused "would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of S.403(present Sec.300) of the Crl. Procedure Code." 15. Yet another aspect that should exist to invoke this principle of issue estoppel is that "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;" Ravinder Singh v. State of Haryana, A.I.R.1975 S.C.856. 16. 16. After reviewing the entire case law on the subject a Full Bench of the Andhra Pradesh High Court in T.V. Sarma v. R.Meeriah, A.I.R.1980 Andhra Pradesh 219, has held thus: "Whatever may be the view of the House of Lords in regard to issue estoppel in English criminal law, we are bound by the decision of the Supreme Court in Pritam Singh's case (supra) and Manipur Administration v. Bira Singh, (AIR 1965 SC 87) (supra) observed that 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 a finding has been reached In favour of an accused, such a finding would constitute an estoppel or resjudicata against the prosecution. But this principle in our view 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 principle of issue estoppel (which as has been pointed out on a number of occasions is only a convenient label or res judicata. In Connelly v. Director of Public Prosecution, 1964 AC 1254, Lord Morries said "apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies." 17. With respect, I agree with the above view expressed by the Andhra Pradesh High Court. 18. The principle of issue estoppel applies to both, issues of fact and issues of law, which once before had been raised and settled between the same parties. 19. With respect, I agree with the above view expressed by the Andhra Pradesh High Court. 18. The principle of issue estoppel applies to both, issues of fact and issues of law, which once before had been raised and settled between the same parties. 19. Now turning to the facts of the case, the question arises whether the allegations in the second complaint, Crl.M.P.1320 of 1984 taken cognizance of by the same Chief Judicial Magistrate, discloses an offence different from the one alleged in the previous complaint, Crl.M.P.180 of 1984. The offence of cheating (S.420 I.P.C.) alleged in the 1st complaint, alone is alleged against the petitioner in this complaint also. This is what is stated in the new complaint, Cr1.M.P.1320 of 1984: "All these facts would reveal that the accused had fraudulently and dishonestly induced the State to deliver the Government Exchange Orders to Indian Airlines which the State would not have issued if the State was not so deceived. Thus the accused has committed the offence of cheating under S.415 of the I.P.C. punishable under S.420 of the Indian Penal Code." (Vide page 5 of Ext.P3) After considering identical allegations in the previous complaint in Crl. M.P.180 of 1984 the Chief Judicial Magistrate has held thus: "It is thus obvious played on them." (quoted in para 5 supra.) 20. Thus it could be seen that the Chief Judicial Magistrate had found that on the merits - based on allegations which are identical in both the complaints, the complainant had no case. He could not establish the offence of cheating alleged in the complaint. 21. I need not mention any more facts to show that Crl. M. P. 1320 of 1984 is nothing but a repetition of Crl. M. P. 180 of 1984, except to refer to the following passage from Crl. M. P. 1320 of 1984: "Taking into account the exceptions and peculiar circumstances, this complaint is filed under S.200 of Crl. P. C. before this Hon'ble Court. The Hon'ble Supreme Court of India in one of its decisions cited A.I.R.1962 S.C. 876, has stated dismissal of a first complaint under S.203, Crl.P.C, is no bar to the entertainment of second complaint for the very same facts if any exceptional circumstance is shown." (emphasis supplied) 22. Thus even according to the complainant, the 2nd complaint is based on same facts on which, he had rested his first complaint. 23. Thus even according to the complainant, the 2nd complaint is based on same facts on which, he had rested his first complaint. 23. The Supreme Court in Pramatha Nath v. Saroj Ranjan, A.I.R. 1962 S.C. 876, has no doubt, held that the dismissal under S.203 of Crl. P.C. of a complaint is no bar to entertain a second complaint on the same facts; but the same could however, be entertained only in exceptional circumstances. The exceptional circumstances, according to the Supreme Court, are "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." The Supreme Court did not stop with these statements. The Supreme Court added: "It cannot be said to be in the interests 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." (Head Note-emphasis supplied) 24. Having understood the law thus, the question arises whether the 2nd complaint discloses any exceptional circumstances justifying the order under attack, giving the complainant another opportunity to have his complaint enquired into? As already noted, even according to the complainant the second complaint is based on the same facts which provided the basis for the 1st complaint. It is not discernible from the second complaint that the complainant has a case that the previous order dismissing Crl. M.P. 180 of 1984 (the 1st complaint) was passed on incomplete records; nor for that matter is there any statement in the 2nd complaint that the previous order was passed on a misunderstanding of the nature of the complaint; nor does the complainant has a case that he could not, with reasonable diligence bring to the notice of the court all the facts and circumstances on record in the previous proceedings. He has not even contended that the previous order was manifestly absurd, unjust or foolish. 25. He has not even contended that the previous order was manifestly absurd, unjust or foolish. 25. Relying on the following decisions, of the Supreme Court in Manohar Nath Kaul v. State of J & K, 1983 S.C.C.(Cri) 648, and the other of this Court in 1983 K.L. T. 756, the complainant however made an attempt to show that the journeys, the accused had had to Bombay and back to Cochin-Trivandrum were not performed in his official capacity and therefore the accused, though a public servant, is not entitled to the protection of S.197, Crl.P.C. The very same question was considered and rejected by the same Magistrate while dismissing the first complaint, Crl. M.P.I80 of 1984. In the said order he has stated the case of the complainant thus: "The complainant further submitted that sanction is not necessary to prosecute a public servant who committed an offence punishable under S.420, I.P.C. It is not an official business of the Chief Minister to commit cheating and hence there is no question of any sanction from the Government to prosecute such accused" After considering this case of the complainant the Chief Judicial Magistrate held: "Here in the instant case the complainant failed to get sanction for the presentation (must be prosecution) of the accused. For this reason alone the complaint should fail." (See para 14 of Ext. P2 extracted supra, for a full text of the discussion.) 26. On the principle of Issue estoppel I am of the view, that the complainant is debarred from raising this question again. 27. Now coming to the aforesaid decision of the Supreme Court, and of this Court, I have no hesitation to hold that they have no application to the case here. Briefly stated the facts of the Supreme Court case are these: "The appellant, a Regional Officer of the Directorate of Feild Publicity, Government of India, travelled by air by obtaining air tickets in lieu of exchange orders. The cost of the tickets was debatable to the account of the Directorate and was to be excluded from the T. A. bills under the rules. On the allegation that the appellant submitted bills including the air fare and received payment for the same, a prosecution report against him was submitted to Magistrate for offence of cheating under S.420' I.P.C." The appellant however, contended that the prosecution was not maintainable for want of sanction under S.197, Crl. On the allegation that the appellant submitted bills including the air fare and received payment for the same, a prosecution report against him was submitted to Magistrate for offence of cheating under S.420' I.P.C." The appellant however, contended that the prosecution was not maintainable for want of sanction under S.197, Crl. P. C. Repelling this contention the Supreme Court held: "Drawing of T. A. bills cannot be said to have been directly and reasonably connected with appellant's duty as Regional Officer of the Directorate and the official status furnished the opportunity for doing the acts which constitute ingredients of the offence. He was, therefore, not entitled to claim the protection of S.197 (1) of the Code". (Head Note) 28. It can thus be seen that in the case before the Supreme Court, the officer concerned travelled by air by obtaining air tickets in lieu of exchange orders and also claimed the cost of the tickets by including the same in hi? T. A. Bills and received payment of the same. Thus he committed the offence of cheating. 29. Here the facts are entirely different. Even according to the complainant, the accused had remitted the cost of the air tickets, he had obtained in lieu of exchange order. It is after considering these facts, the Chief Judicial Magistrate held (Ext. P2 order dismissing the complaint Crl. M. P. 180 of 1984) that the complaint is 'false, frivolous and vexatious'. This being the position, I am of the view that it is unnecessary to take note of the argument of the complainant that no sanction under S.197(1) is necessary to maintain the complaint. In fact this question, on the facts and circumstances of the case, does not arise at all because according to the Chief Judicial Magistrate, (Ext. P2) the petitioner has not committed the offence. 30. A close study of Ext. P2 order of the Chief Judicial Magistrate dismissing the complaint, Crl. M. P. 180 of 1984, under S.203, Crl. P.C. positively shows that the Chief Judicial Magistrate came to the conclusion that the complaint is 'false, frivolous and vexatious' only after elaborately considering the various allegations made in the said complaint and the evidence let in by the complainant, in proof of the said allegations. This being the nature of finding the dismissal of the first complaint cannot be in any manner apparently absurd, unjust or even foolish. This being the nature of finding the dismissal of the first complaint cannot be in any manner apparently absurd, unjust or even foolish. The Magistrate in these circumstances must be held to have erred in entertaining the very same complaint again. I am fortified in this view by the decision of the Supreme Court in Pramatha Nath's case. There the Supreme Court has held; "When a complaint is filed and the Magistrate in an enquiry held under S.202, takes the evidence offered by the complainant into consideration and comes to the conclusion that there is no ground to proceed, the evidence is not worthy of credit and that he is not satisfied with the correctness of the complaint, he is entitled to refuse the issue of process and dismiss the complaint under S.203. In such a circumstance the order of dismissal made by the Magistrate cannot be said to be in any manner manifestly absurd, unjust or foolish, nor can it be said that the Magistrate ignored any principles which are necessary to apply under S.202 and 203 of Crl. Procedure Code nor that there are no sufficient grounds for doing so". 31. In the light of the principles of law enunciated above I have no hesitation to hold that the second complaint is nothing but a gross abuse of the process of court and not filed with the object of furthering the interests of justice. I accordingly quash the proceedings, C. C.18 of 1985 under challenge. 32. Before I part with this judgment I am constrained to make the following observations about the casual way, the Chief Judicial Magistrate dealt with the whole matter. Despite the fact, the complainant had mentioned the decision of the Supreme Court in Pramatha Nath's case in the complaint in support of his plea that a second complaint is maintainable though based on the same facts, on which he had based his first complaint, the Magistrate did not care to see the principles of law enunciated in the said decision; nor did the Magistrate keep in mind the scope and object of S.202. It is by now well-established that the object of an enquiry under S.202 of the Criminal Procedure Code is to ensure that no person shall be compelled to answer a criminal charge unless the court is satisfied that there is a prima facie case for issuing a process against the said accused person. Instead he was satisfied to summon the accused by a cryptic order. It should be remembered that the same Magistrate, while dismissing the first complaint after elaborately considering the evidence let in by the complainant to sustain identical allegations, had held that the first complaint is "false, frivolous and vexatious." In such circumstances, the Magistrate is expected, particularly in view of the above principles of law, to give cogent reasons to take cognizance of the second complaint and issue process against the petitioner. Judicial Officers weilding magisterial powers should exercise the said power with circumspection. Casualness or insouciance shown in the exercise of such authority would result in denial of justice. The Chief Judicial Magistrate in the peculiar circumstances of the case should have rejected the complaint as frivolous and vexatious and as such an abuse of the process of the court. The petition accordingly is allowed.