POONAM CHAND JAIN AND ANR.versusFAZRU

                    [2010] 2 S.C.R. 109


            POONAM CHAND JAIN AND ANR.                          A
                             v.
                         FAZRU
            (Criminal Appeal No. 203 of 2010)
                    JANUARY 28, 2010
                                                                B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Code of Criminal Procedure, 1973: s. 203 - First
complaint dismissed on merits - Second complaint filed on
same facts without disclosing fact of dismissal of first        C
complaint - Maintainability of - Held: An order of dismissal
under s. 203 is no bar for entertaining a second complaint on
the same facts but only in exceptional circumstances - On
facts, core of both complaints was same .- Second complaint
not covered within exceptional circumstances - In that view     D
of the matter, the second complaint was not maintainable.

     The question which arose for consideration in the
present appeal is whether after an order of dismissal of
complaint has attained finality, the complainant can file       E
another complaint on almost identical facts without
disclosing in the second complaint the fact of either filing
of the first complaint or its dismissal.

    Allowing the appeal, the Court
                                                                F
     HELD: An order of dismissal under Section 203
Cr.P.C. is no bar to the entertainment of a second
complaint on the same facts but it can be entertained only
in exceptional circumstances. The exceptional
circumstances may be (a) where the previous order was           G
passed on incomplete record (b) or on a
misunderstanding of the nature of the complaint (c) or the
order which was passed was manifestly absurd, unjust
or foolish or (d) where new facts which could not, with
                            109                                 H
    110      SUPREME COURT REPORTS            [2010] 2 S.C.R.


A reasonable diligence, have been brought on the record
  in the previous proceedings. In the instant case, the·
  second complaint was on almost identical facts which
  were raised in the first complaint and which was
  dismissed on merits. The core of both the complaints
B was same. Nothing was disclosed in the second
  complaint which was substantially new and not disclosed
  in first complaint. No case was made out that even after
  the exercise of due diligence the-facts alleged in the
  second complaint were not within the knowledge of the
c first complaint. In fact such a case could not be made out
  since the facts in both the complaints were almost
  identical. Therefore, the second complaint is not covered
  within exceptional circumstances. In that view of the .
  matter the second complaint in the facts of this case,
  cannot be entertained. Unfortunately, the High Court fell
0
  into an error in not appreciating the legal position in its
  correct perspective while allowing the revision petition of
  the respondent. The order passed by the High Court in
  revision jurisdiction cannot be sustained and is quashed.
E [Paras 23, 27 and 28] (116-A-C; 118-C-G]

       Pramatha Nath Talukdar and another v. Saroj Ranjan
  Sarkar AIR 1962 SC 876; Jatinder Singh and others v. Ranjit
  Kaur AIR 2001 SC 784; Mahesh Chand v. B. Janardhan
  Reddy and another (2003) 1 SCC 734; Hirata/ and others     v.
F State of U.P. & others AIR 2009 SC 2380, relied on.

                        Case Law Reference:
          AIR 1962 SC 876      relied on           Para 23
          AIR 2001 SC 784      relied on           Para 24
G
          c2003) 1 sec 734     relied on           Para 25
          AIR 2009 SC 2380     relied on           Para 26
      CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
H No. 203 of 2010.
      POONAM CHAND JAIN AND ANR. v. FAZRU                    111


     From the Judgment & Order 5.2.2009 of the High Court . A
 of Punjab & Haryana at Chandigarh in Criminal Revision No.
 552 of 2000.

     AM. Singhvi, U.U. Lalit, Jayant Mohan, Rahul Pratap (for
 ·coac") for the Appellants.
                                                                    B
     Khurshid Ahmed, Mehtab Ahmed, Aftab Ali Khan for the
 Respondent.

      The Judgment of the Court was delivered by

      GANGULY, J.1. Leave granted.
                                                                    c
        2. Assailing the judgment of High Court dated 05.02.2009
 rendered in Criminal revision No. 552/2000 this appeal was
 filed.
                                                                    D
      3. The main contention of the' appellants before this Court
 is that without any colour of right the respondent herein
 repeatedly filed complaints on same facts and the High Court
 without proper appreciation of the facts an~ the legal position
 allowed the revision petition of the respondent and caused a       E
 grave failure of justice.

        4. The material facts are that a complaint was filed by th~
  respondent in the court of judicial Magistrate 1st Class, Nuh on
  or about 10.06.1992 alleging therein that the appellants who
  own and possess his own house at Faridabad came into F
  contact with the respondent and ultimately won the confidence
  of the respondent. In the complaint it was alleged that the
  respondent is an illiterate, innocent person with a poor village
  background and he was induced to purchase some land at
· village Mohammedpur for and on behalf of the appellants. Thus G
  the respondent entered into an agreement to sell different plots
  of land ofabout 60 acres at Mohammedpur village.

     5. The said complaint further alleges that various sale
 deeds were executed and registered and respondent was given        H
    1.12      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   the impression that those deeds,were registered in the names
    of appellants and the respondent jointly.

         6. It is further alleged that the respondent was asked to put
    his thumb impression on the sale deeds and he was further
    assured that the land situated in village Mohammedpur, Nuh will
8
    be transferred in their joint names of appellants and the
    respondent.

         7. According to the complaint, fraud was thus played on
    the respondent by the appellants and when the respondent
C   realized the same he allegedly filed a complaint in Chhitranjan
    Park police Station on 28.06.1991 but that police station failed
    to take any action inter alia 'On the ground that the entire thing
    took place beyond their territorial jurisdiction.

D        8. The further case in the complaint is that the respondent
    wanted to file complaint before local police station but as the
    police failed to take any _step, the complaint was filed before
    the Magistrate complaining of offences under Sections 420/
    1208/426 IPC.
E        9. On such complaint the matter was taken up by the
    Judicial Magistrate 1st Class, Nuh and ultimately after a detailed
    analysis of factual and legal position, the Judicial Magistrate
    1st Class came to a conclusion on 13.01.1994 to the following
    effect:
F
           "Thus the whole story of the complainant is bundle of
           falsehood and is liable to be discarded forthwith without
           going further in the investigation of the allegations. Hence
           the complaint is dismissed u/s 420 IP~lso qua accused_
G          no. 1. Record be consigned."

          10. Challenging the order of the Magistrate, a revision
    petition was filed in the High Court of Punjab and Haryana by
    the respondent. The said revision petition was also dismissed
    by order dated 12.02.1996 and while dismissing the petition
H
      POONAM CHAND JAIN AND ANR. v. FAZRU                    113
           [ASOK KUMAR GANGULY, J.]
the High Court recorded the following finding:                       A
     "Having gone through the judgment of the trial court and
     hearing counsel for the parties, I am of the view that the
     case is not for interference. Dismissed."

       11. High Court's finding was not challenged and attained B
finality. It may be noted that respondent also filed a civil suit on
inter alia the same allegations. The said Civil Suit was ·
numbered as 599/92 and was dismissed for default by the
learned Civil Judge, Junior Division, Nuh.
                                                                     c
     12. The said order of dismissal of the suit became final
since no attempt was made to challenge the same.

     13. In the meantime, the appellants filed several suits some
of which were filed by several companies against the
respondent for permanent injunction and other relief. These suits    D
were numbered as follows:

     "(i) Suit No. 241/89 filed by M/s. SPML India Ltd. along with
     Suman Malik, wlo BalkishanlUsman Absul Rahim &
     Hanif v. Fazru slo Bher Khan and Rahim Bux slo Shri             E
     Kaho Khan

     (ii) Suit No.242/89 dated 28.11.1989 title Mis. SPML /f?dia
     Limited and others vs. Fazru and others.               '

     (iii) Suit No.243/89 dated 21.11.1989 title Poonam Chand        F
     Sethi and other vs. Fazru and others.

    (iv) Suit No.244/89 title Mis. SPML India Limited vs. Fazru
    and others."
                                                                     G
     14. AH the suits which were filed against respondent were
clubbed as common questions were involved and there was an
analogous hearing.

     15. All the four suits succeeded with costs and defendants
including the respondents were prevented from the                    H
    114       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   dispossessing the plaintiff over the suit land except in the
    process established by law. Before passing the final decree
    the Civil Court came to the following finding:

          "23. From the oral as well as documentary evidence led
          by the plaintiffs, it is proved that the plaintiffs have
B
          purchased the suit land from its original owners and
          Usman, Hanif and Abdul Rahim are in cultivating
          possession of the suit land as a lessee. The defendant
          no.1 has himself admitted that he is not in possession of
          the suit land. The defendant no.2 has already admitted the
c         claim of the plaintiffs. Therefore, it is concluded that the
          plaintiffs are entitled to the decree of permanent injunction
          as prayed for. Hence, this issue is decided in favour of the
          plaintiffs and against the defendants.;'

D        16. The aforesaid decree passed on 27.10.1997 was not
    challenged by the respondent and therefore become final.

          17. After the civil suits were decreed on 24.10.97, just a
    month thereafter on 25.11.97 another complaint was filed by
E   the respondent in the Court ofJudicial Magistrate on virtually
    the same facts. In fact, paragraphs 4, 6, 7 and 9 of the
    subsequent complaint has a striking similarity with the previous
    one. It may be mentioned that in the second complaint the fact
    of filing of the first complaint and its dismissal was totally
    suppressed.
F
      . 18. On such complaint the Magistrate passed an order
  summoning the appellants 1 and 2. Challenging the said order
  of summoning the appellants, the appellants moved a criminal
  revision before the Court of Additional Sessions Judge,
G Gurgaon and the Additional Sessions Judge, Gurgaon allowed
  the revision and the summoning order was set aside by an
  order dated 9.7.99. Against that order the respondent moved
  a criminal revision being Criminal Revision No.552 of 2000
  before the High Court and the Hon'ble High Court reversed the
H order passed by the Additional Sessions Judge and directed
     POONAM CHAND JAIN AND ANR. v. FAZRU                       115
          [ASOK KUMAR GANGULY, J.]
the appellants to appear before the trial Court where appellants      A
were given liberty to raise all the points and seek
reconsideration of the order in accordance with Section 245
of Criminal Procedure Code.

      19. Against that order the appellants filed a special leave
                                                                      8
petition before this Court wherein leave was granted and it was
numbered as Criminal Appeal No.371/04.

      20 .. In the said criminal appeal this Court remanded the
matter to the High Court for recording positive finding on relevant
issues. This Court while remanding the matter was of the              C
opinion that High Court has not considered the legality of the
order directing issuance of sumr:non keeping in view the law
laid down by this Court. The exact directions given by this Court
in its concluding portion vide order dated 15.10.04 in the
aforesaid criminal appeal is as follows:                              D

     "As the High Court has not considered the legality of the
     order directing issuance of process keeping in view the
     law laid down by this Court, we feel it would be proper to
     remit the matter to the High Court to record positive            E
     findings on the relevant issues".

    21. After the matter was remanded to the High Court, the
High Court passed the impugned judgment holding therein that
the Magistrate's order dated 9.1.99 whereby the appellants
have been summoned is restored and the appellants were                F
asked to face trial.

      22. In the background of these facts, the question which
crops-up for determination by this Court is whether after an
order of dismissal of complaint attains finality, the complainant     G
can file another complaint on almost identical facts without
disclosing in the second complaint the fact of either filing of the
first complaint or its dismissal.

    23. Almost similar questions came up for consideration
before this Court in the case of Pramatha Nath Talukdar and           H
    116     SUPREME COURT REPORTS                 [2010] 2 S.C.R.


A another vs. Saroj Ranjan Sarkar - (AIR 1962 SC 876). The
  majority judgment in Pramatha Nath (supra) was delivered by
  Justice Kapur. His Lordship held that an order of dismissal
  under Section 203 of the Criminal Procedure Code (for short
  'the Code') is, however, no bar to the entertainment of a second
s complaint on the same facts but it can be entertained only in
  exceptional circumstances. This Court explained the
  exceptional circumstances as (a) where the previous order was
  passed on incomplete record (b) or on a misunderstanding of
  the nature of the complaint (c) or the order which was passed
c was manifestly absurd, unjust or foolish or (d) where new facts
  which could not, with reasonable diligence, have been brought
  on the record in the previous proceedings. This Court made it
  very clear that interest of justice cannot permit that after a
  decision has been given on a complaint upon full consideration
  of the case, the complainant should be given another
0
  opportunity to have the complaint enquired into again. In
  paragraph 50 of the judgment the majority judgment of this Court
  opined that fresh evidence or fresh facts must be such which
  could not with reasonable diligence have been brought on
  record. This Court very clearly held that it cannot be settled law
E which permits the complainant to place some evidence before
  the Magistrate which are in his possession and then if the
  complaint is dismissed adduce some more evidence.
  According to this Court such a course is not permitted on a
  correct view of the law. (para 50, page 899)
F
        24. This question again came up for consideration before
  this Court in Jatinder Singh and others vs. Ranjit Kaur- (AIR
  2001 SC 784). There also this Court by relying on the principle
  in Pramatha Nath (supra) held that there is no provision in the
G Code or in any other statute which debars complainant from
  filing a second complaint on the same allegation as in the first
  complaint. But this Court added when a Magistrate conducts
  an enquiry under Section 202 of the Code and dismisses a
  complaint on merits a second complaint on the same facts
H could not be made unless there are 'exceptional
     POONAM CHAND JAIN AND ANR. v. FAZRU                      117
          [ASOK KUMAR GANGULY, J.]
circumstances'. This Court held in para 12 if the dismissal of       A
the first complaint is not on merit but the dismissal is for the
default of the complainant then there is no bar in filing a second
complaint on the same facts. However if the dismissal of the
complaint under Section 203 of the Code was on merit the
position will be different. Saying so, the le~rned Judges held       B
that the controversy has been settled by this Court in Pramatha
Nath (supra) and quoted the observation of Justice Kapur in
paragraph 48 of Pramatha Nath (supra):-

    " ...... An order of dismissal under S. 203, Criminal C
    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 P.assed 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 D
    facts which could not, with reasonable diligence, have
    been brought on the record in the previous proceedings
    have been adduced. It cannot be said to be in the interest
    of justice that after a decision has been given against the
    complainant upon a full consideration of his case, he or. E
    any other person should be given another opportunity to
    have his complaint enquired into ...... "

     25. Again in Mahesh Chand vs. B. Janardhan Reddy and
another - (2003) 1 SCC 734, a three Judge Bench of this F
Court considered this question in paragraph 19 at page 740
of the report. The learned Judges of this court held that a
second complaint is not completely barred nor is there any
statutory bar in filing a second complaint on the same facts in
a case where a previous complaint was dismissed without G
assigning any reason. The Magistrate under Section 204 of the .
Code can take cognizance of an offence and issue process if
there is sufficient ground for proceeding. In Mahesh Chand
(supra) this Court relied on the ratio in Pramatha Nath (supra)
and held if the first complaint had been dismissed the second
                                                                     H
    '118       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A   complaint can be entertained only in exceptional circumstances
    and thereafter the exceptional circumstances pointed out in
    Pramatha Nath (supra) were reiterated.

         26. Therefore, this Court holds that the ratio in Pramatha
    Nath (supra) is still holding the field. The same principle has
8
    been reiterated once again by this Court in Hiralal and others
    vs. State of UP. & others - AIR 2009 SC 2380. In paragraph
    14 of the judgment this Court expressly quoted the ratio in
    Mahesh Chand (supra) discussed hereabove.

C       27. Following the aforesaid principles which are more or
  less settled and are holding the field since 1962 and have been
  repeatedly followed by this Court, we are of the view that the
  second complaint in this case was on almost identical facts
  which was raised in the first complaint and which was dismissed
D on merits. So the second complaint is not maintainable. This
  Court finds that the core of both the complaints is the same.
  Nothing has been disclosed in the second complaint which is
  substantially new and not disclosed in first complaint. No case
  is made out that even after the exercise of due diligence the
E facts alleged in the second complaint were not within the
  Knowledge of the first complain. In fact such a case could not
  be made out since the facts in both the complaints are almost
  identical. Therefore, the second complaint is not covered within
  exceptional circumstances explained in Pramatha Nath (supra).
F In that view of the matter the second complaint in the facts of
  this case, cannot be entertained.

       28. Uafqrtunately, the High Court fell into an error in not
  appreciating the· legal position in its correct perspective while
  allowing the revision petition of the respondent. The order
G passed by the High Court in revision- Jwisdiction cannot be
  sustained and is quashed. This appeal succeeds':

           29. There shall be no order as to costs.

H D.G.                                                Appeal allowed.