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2003 DIGILAW 2070 (MAD)

N. Thulasi Doss v. T. Sumathi

2003-12-16

M.THANIKACHALAM

body2003
Judgment :- The first accused in C.C.No.139/2003 on the file of the District Munsif-cum-Judicial Magistrate, Vandavasi, is the petitioner. 2. The complainant is the wife of the petitioner and their marriage was solemnised on 24.2.1997. At the time of the marriage, the parents of the respondent have given gold jewels and also paid a sum of Rs.2000/-, towards the purchase of dress materials, for the bridegroom. After the marriage, it appears the married life of the petitioner and the respondent was not so happy, because of the conduct of the husband, as well as his relatives. It seems, they have demanded money, even prior to the marriage, for the purchase of house and the said demand continued, thereafter also. Because of the dowry demand, followed by harassment or cruelty, the wife was unable to live, in the matrimonial home and the husband dropped her, at her parents' house, informing her, unless the dowry was paid, she could not live with him. 3. The petitioner had preferred an application, for restitution of the conjugal right and the matter was thereafter settled, to some extent, by the intervention of the elders. According to the complainant, even thereafter, in January 2001, there was a dowry demand for buying house, despite the fact, the jewels of the respondent/complainant had been sold. It seems, at the instigation of the relatives, the husband/petitioner is said to have attacked the respondent at her house, in the month of September and November 2001. In view of the endless torture and causing cruelty to the wife, making persistent demand for dowry, the wife, who had come to the matrimonial home, unable to find a peaceful home, parted the same and thereafter, in order to have redress, she filed a complaint before the Court. The said complaint was forwarded to the police, under Section 156(3) Cr.P.C., for investigation, but it seems there was no fruitful result. Thereafter, even approaching the police, the wife unable to get the required relief, once again approached the same Court, for the relief, by filing a second complaint, which was taken on file as C.C.No.139/2003, wherein this accused is shown as A1 and his relatives are arrayed as A2-A6. 4. Thereafter, even approaching the police, the wife unable to get the required relief, once again approached the same Court, for the relief, by filing a second complaint, which was taken on file as C.C.No.139/2003, wherein this accused is shown as A1 and his relatives are arrayed as A2-A6. 4. The first accused viz., the petitioner, aggrieved by the conduct of the wife, in preferring the second complaint, while the first complaint was under investigation, has filed this petition, to quash the same mainly on the ground that the second complaint is not at all maintainable, which is opposed by the respondent. 5. The main thrust of the learned counsel for the petitioner is, that the complaint, which was taken on file by the learned Judicial Magistrate in C.C.No.139/2003, is not at all maintainable, and the order of taking cognizance, is against the established principle of law and therefore, the same should be quashed. As seen from the records in C.C.No.139/2003, there are six accused, and only the first accused alone, has filed this application. The fact that the other accused have not approached the Court, for quashing the proceedings, on the grounds raised, by the first accused, could not be the reason, to retain the case against them, in case, if it is shown that the second complaint is not maintainable. In this view, even in the absence of the other accused, as petitioners in this petition, if the learned Judicial Magistrate has violated the Code, while taking the case on file, then the entire proceedings should be quashed, if at all giving necessary and appropriate relief to the wife. 6. The learned counsel for the respondent would contend, that the previous complaint preferred by the respondent, was referred by the police, as mistake of fact and therefore, as such, even on the basis of the same allegations, a second complaint could be well maintainable, since the Code of Criminal Procedure does not specifically bar a second complaint. To appreciate the facts in issue, we have to see the previous complaint preferred by the respondent and its result. 7. Magistrate, Vandavasi on 15.4.2002, against this petitioner and five others, contending that they should be dealt with under Section 498(A) I.P.C. and Section 4 of Dowry Prohibition Act, levelling certain allegations. To appreciate the facts in issue, we have to see the previous complaint preferred by the respondent and its result. 7. Magistrate, Vandavasi on 15.4.2002, against this petitioner and five others, contending that they should be dealt with under Section 498(A) I.P.C. and Section 4 of Dowry Prohibition Act, levelling certain allegations. The learned Judicial Magistrate, exercising the power conferred upon him, under Section 156(3) of Cr.P.C., forwarded the said complaint to All Women Police Station, Vandavasi, for investigation and report. The police have not taken any effective steps till 12.11.2002, despite the request made by the respondent, to complete the investigation. Therefore, the respondent herein preferred another complaint, which was taken on file in C.C.NO.139/2003, as per the order of the Judicial Magistrate on 2.9.2003, under Sections 498-A, 324, r/w Section 4 of Dowry Prohibition Act. In the said petition itself, the respondent herein has made an allegation that All Women Police Station has not properly conducted the enquiry and the result was also not informed to her. Taking of cognizance of the second complaint, as per the order dated 2.9.2003 alone is impugned, before this Court, labeling the same as an abuse of process of law. 8. On the basis of the complaint forwarded to the police, it seems, they have conducted an enquiry and referred the case, as mistake of fact, for which a report was sent to the Court, on 12.11.2002. As seen from the records and as submitted by the learned counsel for the petitioner, which is not challenged, on the basis of the referred charge sheet, the learned Judicial Magistrate also, recorded the same, as if the previous case was closed, as mistake of fact. The grievance of the respondent in the second complaint is that no notice was given and therefore, she was constrained to prefer a second complaint. Therefore, we have to see whether a notice was given to the complainant on the basis of the referred charge sheet, either by the police or by the Court, if not, what is the effect of the previous case, as well as what would be the result of the second complaint. 9. The first complaint as well as the second complaint are more or less one and the same, regarding the offences said to have been committed, by this petitioner and other accused. 9. The first complaint as well as the second complaint are more or less one and the same, regarding the offences said to have been committed, by this petitioner and other accused. Some of the paragraphs in both the complaints are one and the same. It is not the case of the learned counsel for the respondent, that the second complaint is based on different cause of action, for different offences said to have been committed by the accused, after preferring the first complaint. Therefore, it could be safely taken that both the complaints are containing the same allegations, seeking punishment against all the accused. The witnesses cited in both the complaints are also one and the same except one or two. Under the above circumstances, there is no difficulty in concluding, that the second complaint also does contain the same allegations, as that of the first complaint. 10. The learned counsel for the petitioner submits that the second complaint preferred by the respondent and taking cognizance of the same, after the previous complaint was referred as mistake of fact, is not at all maintainable, placing reliance upon a decision of this Court in A. Krishna Rao v. L.S.Kumar (1998 (I) CTC 329). In the said case, the complainant therein, filed a private complaint, before the Judicial Magistrate No.II, Wallajapet, which was forwarded to the police under Section 156(3) Cr.P.C., for investigation and report. On receipt of the complaint from the Court, the police have also registered a case and after investigation, filed a final report, referring the case as mistake of fact. Thereafter, the learned Magistrate sent a memo along with RCS notice to the complainant and the complainant has not filed any objection. Instead of agitating the case, in the same complaint, by filing objection to RCS, it appears, the complainant in that case, has filed another complaint, which was taken on file, and the same was challenged before this Court. This Court while considering the facts and circumstances of that case, as well as placing reliance on the previous decisions, had come to the conclusion, that the second complaint is not maintainable and therefore, taking cognizance of the second complaint, after the previous complaint was referred as mistake of fact, is liable to be quashed. This Court while considering the facts and circumstances of that case, as well as placing reliance on the previous decisions, had come to the conclusion, that the second complaint is not maintainable and therefore, taking cognizance of the second complaint, after the previous complaint was referred as mistake of fact, is liable to be quashed. It is also observed in the said decision that when the Magistrate has accepted the RCS, the second complaint should be filed, only after setting aside the order passed by the learned Magistrate, in the referred charge sheet. I am afraid to apply the above principle as such, in view of the decision rendered by the Apex Court in Mahesh Chand v. B. Janardhan Reddy [ (2003) 1 SCC 734 ] 11. The learned counsel for the petitioner alone supplied this decision, in order to enlighten, under what circumstances, a second complaint would lie, thereby conceding to certain extent, on the same cause of action, a second complaint also could be filed or preferred. In the case involved in the above decision, the complainant had lodged a first information, reporting some cognizable offences, which was taken for investigation by the police. In the meanwhile, being not satisfied with the investigation carried out by the police authorities, the same complainant filed a criminal complaint in the Court of Additional Judicial Ist Class Magistrate, against the person accused. The police, after investigation came to the conclusion that the dispute between the parties, was civil in nature and in that view, a disposal report was filed before the Magistrate. The complainant, not satisfied about the disposal report, filed a protest application, but the disposal report filed by the police, was accepted by the learned Magistrate, closing the complaint filed by the aggrieved party. Thereafter, the same complainant preferred a third complaint before the Court, whereupon summons were issued to the person accused. The accused person aggrieved by the conduct of the complainant viz., preferring third complaint, when the previous complaint was closed, questioned the same, before the High Court, on the ground, because of the previous closure of the case, referring the same as, the dispute between the parties was civil in nature, a fresh complaint on the selfsame allegations was barred. The High Court quashed the petition, which was the subject matter before the Apex Court, in the above case. The High Court quashed the petition, which was the subject matter before the Apex Court, in the above case. The Hon'ble Apex Court, enunciating the law on this point, had ruled, confirming the previous decision also, that there is no statutory bar, in filing a second complaint on the same facts. It is also held, in a case, where a previous complaint is dismissed, without assigning reasons, the Magistrate under Section 204 Cr.P.C., may take cognizance of the offence and issue process, if there is sufficient ground for proceeding. It is the dictum of the Supreme Court, a second complaint, on the same facts, could be entertained only in exceptional circumstances, viz., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts, which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. The second complaint could be dismissed, after a decision has been given against the complaint in previous matter, upon a full consideration of his case. Thus it is evident, there is nothing in law, prohibiting the entertainment of a second complaint on the same allegations, when a previous complaint has been dismissed. In that view, the Apex Court has concluded as follows: "Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts" Because of this ruling, accepting the ruling of this Court in A.Krishna Rao's case, as such, may not be possible and it is distinguishable. 12. The learned counsel for the petitioner submits, in order to entertain this second complaint, it should come within the three categories of the cases, as ruled by Apex Court and they are: 1) where the previous order was passed on an incomplete record or 2) on a misunderstanding of the nature of complaint or 3) it was manifestly absurd, unjust. 13. A reading of the first complaint and the second complaint and the records placed before me, failed to bring the second complaint within the above said exceptional circumstances. 13. A reading of the first complaint and the second complaint and the records placed before me, failed to bring the second complaint within the above said exceptional circumstances. Therefore, at present, I have to accept the contention of the learned counsel for the petitioner, as such, that without showing the exceptional circumstances, enumerated by the Supreme Court, the second complaint is not maintainable. Under the facts and circumstances of the case, quashing the proceedings on the above said grounds, the respondent should not be left without any remedy, for the mistake committed by the investigating agency, as well as the court, and even it is conceded by the learned counsel for the petitioner, very fairly, that an opportunity should be given to the complainant viz., the respondent herein, to agitate her case. In this context, we have to see the procedure followed by the Inspector of Police, All Women Police Station, as well as the learned Magistrate, at the time of filing RCS and thereafter. 14. In the petition itself, it is specifically stated that the police have not properly investigated the case and informed the result also. As seen from page 31 and 33 of the typeset, the RCS was received by the Court on 12.11.2002 and the same was recorded on 13.11.2002, endorsing the report of the investigating officer, as mistake of fact. There is no indication that notice was served to the complainant and I am unable to find any acknowledgment also. It is not the case of the petitioner before me, that notice was served, but the complainant failed to produce the same, by filing objections. In the absence of any materials to indicate that when the case was referred as mistake of fact, notice was given to the complainant viz., the respondent herein, there was no opportunity for the complainant to protest the same, by filing protest application, requesting the Magistrate to consider her case. Therefore, on the basis of RCS, it is not possible to say, that the right of the complainant is barred and the same is supported by the Apex Court's rulings also. In Mahesh Chand's case ,on the basis of the disposal report, the case filed by the complainant was also closed and the said order has not been questioned by him. In Mahesh Chand's case ,on the basis of the disposal report, the case filed by the complainant was also closed and the said order has not been questioned by him. Despite the fact, he has filed third complaint and the Apex Court has said, that the third complaint is maintainable, under certain circumstances. 15. The learned counsel for the petitioner submits that the exceptional circumstances, under which a complaint could be filed, as ruled by the Apex Court, is not available in this case and therefore, as such the second complaint is not maintainable, and the same should be quashed, since it is an abuse of process of law. As aforementioned, the second complaint is not enumerated or catalogued, under what circumstances, the complainant was compelled to file a fresh complaint, on the same allegations. Whereas the complainant's case is, since the police have failed to investigate the case, file a final report and not informed the result, she was constrained to file this case, which is not available to the complainant, generally. If the complainant is aggrieved, that despite the fact that the complaint was forwarded by the Court to the police, for investigation and report, under section 156(3) of Cr.P.C., in case, the report is not filed, the complainant ought to have moved the court concerned, seeking the relief and in that case, the Court should have addressed the police concerned, directing to file a final report and in the ordinary course, it should be the procedure. Admittedly, the complainant has not moved the court, but as seen from the records, the referred RCS was filed by the police and the same was recorded by the Court also, without giving an opportunity to the complainant, to file a protest application. At least, the court ought to have informed the complainant, about the RCS given by the police, thereby inviting objections, if any, because of the fact, only at the instance of the complainant, a petition was forwarded to the police, for investigation. Therefore, it is not fair on the part of the Court and I should say, it is against natural justice also, that without informing the complainant, the case should not have been terminated. Therefore, it is not fair on the part of the Court and I should say, it is against natural justice also, that without informing the complainant, the case should not have been terminated. At least, at the time of filing of the second complaint, where there is a reference regarding the previous complaint, the Court ought to have woke up, verified the records and informed the complainant, what is the fate of the previous complaint. Thus, the Court failing in its duty also, has taken the case on file, when the result of the previous complaint was not informed to the complainant. In this view, I am of the considered opinion, taking of the case by the Judicial Magistrate, without any exceptional circumstances, as ruled by the Apex Court, appears to be an abuse of process of law, and in this view, though I am inclined to quash the order of taking cognizance of the case on file. I feel, that an opportunity should be given to the complainant, to agitate her case and her right should not be negatived, without giving an opportunity. 16.In the result, the petition is allowed and the order of taking cognizance of the case on file in C.C.No.139/2003 by the Judicial Magistrate, Vandavasi, is set aside and the proceeding is quashed. The trial Court is directed to give notice, keeping this complaint on its file, regarding the RCS filed b1*-y the police to the previous complainant, inviting the protest application. Then considering the case of the complainant/respondent, the trial Court is directed to give a finding, whether the previous complaint is to be taken on file or the subsequent complaint is to be taken on file, taking cognizance of any one of the complaint, as per the offence made out according to law. Connected Crl.M.Ps. Are closed.