Chand Jain & ANR. Vs. Fazru  INSC 66 (28 January 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.203
of 2010 (@ SPECIAL LEAVE PETITION (CRL.) NO.1812 OF 2009 ) Poonam Chand Jain
and Another ..Appellant(s) - Versus - Fazru ..Respondent(s)
Assailing the judgment of High Court dated 05.02.2009 rendered in
Criminal revision No.552/2000 this appeal was filed.
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 and the
legal position allowed the revision petition of the respondent and caused a
grave failure of justice.
The material facts are that a complaint was filed by the
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 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 the respondent entered into an agreement to sell
different plots of land of about 60 acres at Mohammedpur village.
The said complaint further alleges that various sale deeds were
executed and registered and respondent was given the impression that those
deeds were registered in the names of appellants and the respondent jointly.
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 be transferred in their joint names
of appellants and the respondent.
According to the complaint, fraud was thus played on the
respondent by the appellants and when the respondent 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.
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 420/120B/426 IPC.
On such complaint the matter was taken up by the Judicial
Magistrate Ist Class, Nuh and ultimately after a detailed analysis of factual
and legal position, the Judicial Magistrate Ist Class came to a conclusion on
13.01.1994 to the following effect:
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
complaint is dismissed u/s 420 IPC also qua accused no. 1. Record be
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 the High Court recorded the following finding:
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.
High Court's finding was not challenged and attained 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.
The said order of dismissal of the suit became final since no
attempt was made to challenge the same.
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 were numbered as follows:
Suit No. 241/89 filed by M/s. SPML India Ltd along with Suman Malik, w/o
Balkishan / Usman Absul Rahim & Hanif v.Fazru s/o Bher Khan and Rahim Bux
s/o Shri Kaho Khan (ii) Suit No.242/89 dated 28.11.1989 title M/s. SPML India
Limited and others vs.Fazru and others.
Suit No.243/89 dated 21.11.1989 title Poonam Chand Sethi and other vs.Fazru and
No.244/89 title M/s. SPML India Limited vs. Fazru and others."
All the suits which were filed against respondent were clubbed as
common questions were involved and there was an analogous hearing.
All the four suits succeeded with costs and defendants including
the respondents were prevented from the 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:
From the oral as well as documentary evidence led by the plaintiffs, it is
proved that the plaintiffs have 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
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."
The aforesaid decree passed on 27.10.1997 was not challenged by
the respondent and therefore become final.
After the civil suits were decreed on 24.10.97, just a month
thereafter on 25.11.97 another complaint was filed by the respondent in the
Court of Judicial 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.
On such complaint the Magistrate passed an order summoning the
appellants 1 and 2.
the said order of summoning the appellants, the appellants moved a criminal
revision before the Court of Additional Sessions Judge, 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 order passed by the Additional
Sessions Judge and directed the appellants to appear before the trial Court
where appellants were given liberty to raise all the points and seek reconsideration
of the order in accordance with Section 245 of Criminal Procedure Code.
Against that order the appellants filed a special leave petition
before this Court wherein leave was granted and it was numbered as Criminal
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 opinion that High Court has not considered the
legality of the order directing issuance of summon 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
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 findings on the
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 asked to face trial.
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
has attains finality, the complainant 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.
Almost similar questions came up for consideration before this
Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar
- (AIR 1962 SC 876). The majority 10 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 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 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 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 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.
to this Court such a course is not permitted on a correct view of the law.
(para 50, page 899)
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 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
could not be made unless there are `exceptional circumstances'. This Court held
in para 12 if the dismissal of the first complaint is not on merit but the
dismissal is for the default of the complainant then there is no bar in the
filing a second complaint on the same facts.
if the dismissal of the complaint under Section 203 of the Code was on merit
the position will be different. Saying so, the learned Judges held 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 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. 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 any other person
should be given another opportunity to have his complaint enquired
Again in Mahesh Chand vs. B. Janardhan Reddy and another - (2003)
1 SCC 734, a three Judge Bench of this 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 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 complaint can be entertained only in exceptional
circumstances and thereafter the exceptional circumstances pointed out in
Pramatha Nath (supra) were reiterated.
Therefore, this Court holds that the ratio in Pramatha Nath
(supra) is still holding the field. The same principle has been reiterated once
again by this Court in Hiralal and others vs. State of U.P. & others - AIR
2009 SC 2380.
paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh
Chand (supra) discussed here above.
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
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 facts alleged in the second complaint were not within the application of
the first complainant. 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). In that view of the matter the second complaint in the facts of
this case, cannot be entertained.
Unfortunately, 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 passed by the High Court in
revision jurisdiction cannot be sustained and is quashed. This appeal
There shall be no order as to costs.