B.R.K. AATHITHANversusSUN GROUP & ANR.

                        [2022] 10 S.C.R. 87                              87


                       B.R.K. AATHITHAN                                  A
                                  v.
                       SUN GROUP & ANR.
               (Criminal Appeal Nos. 2080-2083/2022)
                       NOVEMBER 29, 2022                                 B
        [SURYA KANT AND J. K. MAHESHWARI, JJ.]
       Code of Criminal Procedure, 1973 – s.482 – Quashing of
criminal proceedings – Second complaint on identical set of facts –
Factum of FIR against appellant and his arrest was telecasted and
                                                                         C
publicised by the respondents – Complaint u/ss.499 and 500, IPC
filed by appellant against respondents, dismissed by Judicial
Magistrate – Revision petition filed by the appellant before High
Court was dismissed as withdrawn – Appellant filed second
complaint under the same provisions on same facts only adding the
factum of Revision Petition and claiming that the second complaint       D
is being filed as per the order of the High Court – Magistrate
summoned the respondents, they filed petition u/s.482, Cr.PC which
was allowed – On appeal, held: Second complaint can be
maintainable in exceptional circumstances, depending upon the
manner in which the first complaint came to be dismissed – In the
                                                                         E
present case, when the first complaint was filed u/ss.499, 500, IPC,
the Judicial Magistrate was well within his jurisdictional competence
to find out whether a prima facie case for summoning the accused
was made out or not, however, on having found that the allegations
made by appellant were in the teeth of fourth exception to s.499,
IPC, he declined to issue process to the respondents – Such dismissal    F
cannot be said to be without application of judicial mind, even if
erroneous in law – Appellant took a chance and challenged the
said order of dismissal before High Court in Revision – No sooner
the High Court expressed reluctance to entertain the Revision Petition
on merits, the appellant withdrew the same to work out his remedy
                                                                         G
as available in law – Such order cannot be construed to have
permitted the appellant to file a second complaint on identical set
of facts – No error in the impugned judgment – Penal Code,1860 –
ss.499, 500.

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                                 87
88            SUPREME COURT REPORTS                     [2022] 10 S.C.R.


A          Dismissing the appeals, the Court
            HELD: There can be no quarrel that in view of the decisions
     of this Court in “Pramantha Nath Talukdar v. Saroj Ranjan
     Sarkar” AIR 1962 SC 876 and “Shivshankar Singh Vs. State of
     Bihar and Another” (2012) 1 SCC 130, the second complaint can
B    be maintainable in exceptional circumstances, depending upon
     the manner in which the first complaint came to be dismissed. To
     say it differently, if the first complaint was dismissed without
     venturing into the merits of the case or on a technical ground
     and/or by returning a reasoning which can be termed as perverse
     or absurd in law, and/or when the essential foundation of second
C    complaint is based upon such set of facts which were either not
     in existence at the time when the first complaint was filed or the
     complainant could not have possibly lay his hands to such facts at
     that time, an exception can be made to entertain the second
     complaint. These principles, however, are not attracted to the
D    facts circumstances of the case in hand. When the first complaint
     was filed primarily under Sections 499 and 500 IPC, the Judicial
     Magistrate was well within his jurisdictional competence to find
     out whether a prima facie case for summoning the accused was
     made out or not. This essentially involved application of judicial
     mind to reach a definite conclusion as to whether or not the
E    accused be summoned. In the instant case, the Judicial
     Magistrate having found that the allegations made by the appellant
     were in the teeth of fourth exception to Section 499 IPC, he
     declined to issue process to the respondents. Such dismissal
     cannot be said to be without application of judicial mind. The
F    application of judicial mind and arriving at an erroneous conclusion
     are two distinct things. The Court even after due application of
     mind may reach to an erroneous conclusion and such an order is
     always justiciable before a superior Court. Even if the said Order
     is set aside, it does not mean that the trial court did not apply its
     mind. The appellant took a chance and challenged the order of
G    dismissal of his 1st complaint before the High Court in a Criminal
     Revision Petition. It is apparent from the contents of the Order
     that no sooner the High Court expressed its reluctance to
     entertain the Revision Petition on merits, the appellant withdrew
     the same to work out his remedy as may be available in law. This
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          B.R.K. AATHITHAN v. SUN GROUP & ANR.                         89


Order cannot be construed to have permitted the appellant to           A
file a second complaint on identical set of facts. The view taken
by the High Court in Para No. 19 and Para No. 22 of its impugned
Order, thus, appears to be the correct statement of law. Even if
the order of Judicial Magistrate while dismissing the first
complaint was erroneous in law, it does not amount to non-
                                                                       B
application of mind by the trial court. No error found in the
impugned Judgment passed by the High Court. [Paras 14-17, 19
and 20][92-G-H; 93-A-G; 94-C-D]
      Pramantha Nath Talukdar v. Saroj Ranjan Sarkar AIR
      1962 SC 876 : [1962] Suppl. SCR 297; Shivshankar
      Singh v. State of Bihar and Another (2012) 1 SCC 130             C
      : [2011] 13 SCR 247 – relied on.
      Subramanian Swamy v. Union of India (2016) 7 SCC
      221 : [2016] 3 SCR 865 – referred to.
                      Case Law Reference                               D
[1962] Suppl. SCR 297             relied on             Para 14
[2011] 13 SCR 247                 relied on             Para 14
[2016] 3 SCR 865                  referred to           Para 17
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                 E
Nos. 2080-2083 of 2022.
      From the Judgment and Order dated 30.08.2019 of the High Court
of Madras at Madurai Bench in Criminal Original Petition (MD) Nos.
1246 and 1298-1300 of 2017.
      P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. Sibi      F
Kargil, V. Kandha Prabhu, L. R. Venkatesan, Ms. Maitri Goal,
Ms. Priyanka Chowdhary, Hemant Kumar Niranjan, K. K. Chauhan,
Advs. for the Appellant.
      Satyanarayan, Sr. Adv., Abhishek Malhotra, Ms. Liz Mathew,
Harsh Buch, Ms. Vasudha Jain, K. V. Jagdishwaran, Ms. G. Indira,       G
Harnaman Singh, P. Gandeepan, Mrs. Koj Yaayung, Kashyap, Advs. for
the Respondents.


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90            SUPREME COURT REPORTS                          [2022] 10 S.C.R.


A          The Judgment of the Court was delivered by
           SURYA KANT, J.
           Delay condoned.
           2. Leave granted.
B          3. The appellant assails the Judgment and Order dated 30-08-
     2019 passed by the High Court of Judicature at Madras, Madurai Bench,
     whereby the High Court allowed the petition under Section 482 of the
     Code of Criminal Procedure, 1973 (in short, ‘the Cr.P.C.’) filed by the
     respondents and quashed the Criminal Complaint viz. STC No.45 of
C    2017, filed under Sections 499 and 500 of the Indian Penal Code, which
     the appellant had filed against the respondents.
           4. Briefly stated, the facts are that First Information Report No.345
     of 2013 was registered against the appellant under Section 468 IPC
     before Tirucher Taluk Police, Tutukodi District at the instant of an
D    Advocate who alleged that the appellant had taken huge amounts of
     money by assuring admission to candidates in various law colleges.
            5. The factum of registration of the FIR and arrest of the appellant
     in that case was tele-casted and published in the TV and print media by
     the respondents.
E          6. The appellant having felt that the action of the respondents
     amounted to criminal defamation, filed a Criminal Complaint under
     Sections 499 and 500 IPC etc. which was, however, dismissed by the
     learned Judicial Magistrate on 28-04-2015 by passing the following
     Order:-
F          “Heard perused, it is alleged by the Petitioner that the Respondents
           broad-casted and published defamation against the Petitioner. On
           perusal of the available material which is revealed that the content
           of the Petitioner falls in the Fourth exception of U/s 499 of IPC.
           Hence, there is no prima facie case made out against the
           Respondents for the alleged offences. Hence, this Petition stands
G          is dismissed.
           7. The aggrieved appellant filed a Criminal Revision before the
     High Court but the same was withdrawn on 10-06-2015 in the following
     terms:-

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           B.R.K. AATHITHAN v. SUN GROUP & ANR.                               91
                      [SURYA KANT, J.]

      “As per the endorsement made by the learned counsel appearing           A
      for the revision petitioner, this revision petition is dismissed as
      withdrawn with liberty to the petitioner to work out his remedy in
      the manner known to law.”
      8. Thereafter, the appellant filed second Criminal complaint, i.e,
STC 45/2017 in the Court of Judicial Magistrate at Tiruchendur which          B
too was under the same provisions as was his first complaint.
        9. It is hardly in dispute that the second complaint was replica of
the first complaint with each and every averments being identical except
that in the second complaint, the appellant added one more paragraph
No.11, incorporating the factum of filing Criminal Revision before the        C
High Court; rejection thereof and further claiming that he had filed a
second complaint “as per the order of the Hon’ble Madurai Bench of
the Madras High Court”.
       10. In the second complaint, learned Judicial Magistrate summoned
the respondents which prompted them to file a Petition under Section          D
482 of the Cr.P.C. before the High Court, seeking quashing of the said
complaint primarily on the ground that the second complaint on the same
set of facts and circumstances was not maintainable. Vide impugned
Judgment and Order dated 30-08-2019, the High Court allowed the petition
filed by the respondents and consequently, the second complaint filed by
the appellant has been quashed.                                               E

      11. The High Court while reaching the said conclusion has held as
follows:-
      “Keeping the above principles in mind, let me now consider the
      issue. The averments made in the first complaint filed by the           F
      respondent, coupled with the sworn in statements of the witnesses
      were fully considered by the learned Magistrate. On considering
      the entire materials, the learned Magistrate has come to a conclusion
      that, the complaint squarely fall under fourth exception to Section
      499 of IPC, he declined to issue the process to respondents and
      there was no prima facie case made out against the accused therein      G
      and dismissed the same. On a perusal of the earlier order, it could
      be seen that the learned Magistrate had duly applied his mind and
      on being satisfied that no prima facia case was made out against
      the accused, as the allegations made in the complaint would only
      fall under Section 499 of IPC, and dismissed the complaint, and
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92             SUPREME COURT REPORTS                         [2022] 10 S.C.R.


A          the order has been passed upon full consideration of the entire
           materials available on record, whether the order is correct or not
           is totally a different issue. Once a learned Magistrate applied his
           mind on the materials available on record and came to a conclusion
           that no prima facie case was made out against the accused and
           dismissed the complaint, another Judicial Magistrate cannot hold
B
           that the earlier order passed by his predecessor is not valid, it
           virtually amounts to reviewing the earlier order, which is barred
           under Section 362 Cr.P.C. The only remedy available to the
           complainant is to challenge the same before the appropriate forum
           and get that order set aside. In the present case, the respondent/
C          complainant has already challenged the order by way of a revision
           before this Court, but, subsequently, he has withdrawn the revision
           and the revision was also dismissed. In the above circumstances,
           after getting the revision dismissed, the respondent/complainant
           cannot maintain another complainant on the very same fact.”
D          12. The High Court has further observed in Para 22, to the
     following effect:-
           “As already discussed above, the second complaint in the instant
           case is replica of the facts set out in the first complaint and no
           fresh facts have been set out in the second complaint. The core
E          issue in both the complaints are one and the same. The second
           complaint also does not disclose any of the exceptional
           circumstances warranting the entertainment of the complaint. The
           earlier complaint wass dismissed after full consideration of the
           entire materials available on record, unless the order dismissing
           the complaint under Section 203 of Cr.P.C. is set aside by a
F          competent forum, a second complaint is not maintainable”.
            13. We have heard learned counsel appearing for the appellant as
     well as learned counsel appearing for the respondents and gone through
     the record.

G          14. There can be no quarrel that in view of the decisions of this
     Court in “Pramantha Nath Talukdar v. Saroj Ranjan Sarkar” AIR
     1962 Supreme Court 876” and “Shivshankar Singh Vs. State of Bihar
     and Another” (2012) 1 SCC 130, the second complaint can be
     maintainable in exceptional circumstances, depending upon the manner
     in which the first complaint came to be dismissed. To say it differently, if
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           B.R.K. AATHITHAN v. SUN GROUP & ANR.                                93
                      [SURYA KANT, J.]

the first complaint was dismissed without venturing into the merits of the     A
case or on a technical ground and/or by returning a reasoning which can
be termed as perverse or absurd in law, and/or when the essential
foundation of second complaint is based upon such set of facts which
were either not in existence at the time when the first complaint was
filed or the complainant could not have possibly lay his hands to such
                                                                               B
facts at that time, an exception can be made to entertain the second
complaint.
       15. These principles, however, in our considered view, are not
attracted to the facts circumstances of the case in hand. When the first
complaint was filed primarily under Sections 499 and 500 IPC, the Judicial
Magistrate was well within his jurisdictional competence to find out           C
whether a prima facie case for summoning the accused was made out
or not.
       16. This essentially involved application of judicial mind to reach a
definite conclusion as to whether or not the accused be summoned. In
the instant case, the learned Judicial Magistrate having found that the        D
allegations made by the appellant were in the teeth of fourth exception
to Section 499 IPC, he declined to issue process to the respondents.
Such dismissal cannot be said to be without application of judicial mind.
The application of judicial mind and arriving at an erroneous conclusion
are two distinct things. The Court even after due application of mind          E
may reach to an erroneous conclusion and such an order is always
justiciable before a superior Court. Even if the said Order is set aside, it
does not mean that the trial court did not apply its mind.
       17. The appellant took a chance and challenged the order of
dismissal of his 1st complaint before the High Court in a Criminal Revision    F
Petition. It is apparent from the contents of the Order that no sooner the
High Court expressed its reluctance to entertain the Revision Petition on
merits, the appellant withdrew the same to work out his remedy as may
be available in law. This Order cannot be construed to have permitted
the appellant to file a second complaint on identical set of facts. The
view taken by the High Court in Para No.19 and Para No. 22 of its              G
impugned Order, as reproduced above, thus, appears to be the correct
statement of law.
      18. Learned counsel appearing for the appellant then relies upon
the Judgment of this Court in “Subramanian Swamy Vs. Union of
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94             SUPREME COURT REPORTS                       [2022] 10 S.C.R.


A    India” (2016) 7 SCC 221, to urge that the onus was on the respondents
     to establish that the appellant’s first complaint was barred by fourth
     exception to Section 499 of IPC.
            19. It appears to us that such a contention was available to the
     appellant before the High Court in Criminal Revision filed by him
B    challenging the order of dismissal of his first complaint. The appellant
     instead of withdrawing the Criminal Revision, ought to have invited an
     order on merits including on the contention sought to be raised now. As
     stated earlier, even if the order of learned Judicial Magistrate while
     dismissing the first complaint was erroneous in law, it does not amount
     to non-application of mind by the trial court.
C
          20. For the aforesaid reasons, we do not find any error in the
     impugned Judgment dated 39-08-2019 passed by the High Court.
            21. The appeals are, accordingly, dismissed.

D    Divya Pandey                                            Appeals dismissed.
     (Assisted by : Deepak Panwar, LCRA)




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