Judgment:
ORDER
S.R. Bannurmath, J.
1. These two petitions are filed for quashing the proceedings in Crime No. 138 of 2000 and later case registered in C.C. No. 2388 of 2000 on the file of learned Additional Chief Metropolitan Magistrate, Bangalore.
2. In order to understand the rival contentions of both the sides it is necessary to look into the facts giving rise to the present proceedings.
3. The undisputed facts chronologically were as follows.-
(1) One Smt. Rathnamma, contesting respondent herein, had filed a private complaint under Section 200 of the Cr. P.C. against the petitioners/accused herein on 16th December, 1997 for various offences, like, under Sections 307, 506, 463, 464, 470, 466, 468, 295, 324, 327, 365 and 347 all read with Sections 141 and 144 of the IPC.
(2) On receipt of the complaint the learned Magistrate referred the same to the jurisdictional police for investigation and enquiry under Section 156(3) of the Cr. P.C.
(3) On receipt of the same the jurisdictional police registered the case in Crime No. 1505 of 1997 and took up the investigation.
(4) After the completion of the investigation the Investigating Officer on 13th March, 1998 filed (B' report.
(5) Aggrieved by the same the complainant preferred protest petition on 31-7-1998.
(6) On considering the rival contentions the learned Magistrate rejected the 'B' report, took cognizance and on 20th April, 1999 recorded partly, the sworn statement of the complainant and adjourned the case. Thereafter, on 26th June, 1999 the said complaint came to be dismissed for non-prosecution.
(7) Aggrieved by the same the complainant preferred Revision Petition No. 293 of 1999 challenging the order of dismissal of the complaint. This revision petition came to be dismissed on 2nd May, 2000.
(8) In the meanwhile, the very same complainant also approached this Court by filing a public interest litigation in W.P. No. 1507 of 1998 inter alia contending that the complaint/representation filed by the complainant against the accused (petitioners). In respect of the property in dispute, its fraudulent sale transactions has been ignored and not inquired into by the police in spite of several representations and as such requested this Court to issue direction to hold an enquiry and investigation preferably by CBI or COD.
(9) After hearing the complainant, the investigating agency andthe State Government, the Division Bench of this Court by the order dated 20th January, 2000 allowed the public interest litigation writ petition with a direction to police to register a complaint, to investigate and submit the report in respect of the allegations of the complainant.
(10) In pursuance of the direction, the jurisdictional police have registered a case in Crime No. 138 of 2000 and took up the investigation, and on completion on 27-2-2000 the Investigating Officer has filed the charge-sheet.
(11) Being aggrieved by the registration of case in Crime No. 138 of 2000 and taking up investigation, the petitioners-accused have filed Criminal Petition No. 2153 of 2000 as well as Criminal Petition No. 2434 of 2000 for quashing the entire proceedings including charge-sheet and registration of case in C.C. No. 2388 of 2000 before the learned Magistrate, Bangalore.
2. As noted earlier since the question of facts, law involved in both the cases are common and as both the parties are represented by common Advocates, both the cases are taken up together and disposed off by the common order.
3. The main contention of the learned Counsel for the petitioners for quashing the proceedings is as to the maintainability of the second complaint and proceedings initiated thereunder. It is contended that in view of the undisputed facts that the respondent had already filed criminal case against the petitioners on 16-12-1997 for the same offence, on the same allegations and having failed thereunder cannot maintain the second complaint now registered in Crime No. 138 of 2000 and C.C. No. 2388 of 2000 before the learned Magistrate. In this regard, the learned Counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in the case of T.T. Antony v State of Kerala and Ors., : 2001CriLJ3329 . The learned Counsel contended that on the basis of earlier complaint filed by the respondent-complainant, the Magistrate had taken cognizance and got the case investigated in Crime No. 1505 of 1997 which ended in the investigating agency filing the report on 13-3-1998. The protest petition came to be accepted, partly sworn statement of the complainant was recorded and thereafter the complaint came to be dismissed for non-prosecution on 26-6-1999. Aggrieved by the same, the complainant preferred Revision Petition No. 293 of 1999 which came to be rejected and dismissed on 2-5-2000. As such, the second complaint got registered by suppression of facts through the public interest writ petition, are abused for process of law. It is submitted that even though the Division Bench of this Court had allowed the writ petition and directed the investigating agency to register a case, since the same was obtained by suppression of facts, it amounts to filing of second complaint by abuse of process of law and hence illegal one.
4. In this regard, the learned Counsel submitted that even though the allegation against the petitioners in the first complaint indicate certain dispute between two sets of private parties, on failure to get the criminal action against the petitioners because of their own conduct, the respondent has approached this Court in the writ petition making it as a public interest litigation even though no public interest is involved. Added to this, the complainant has falsely stated in the writ petition that the earlier complaint filed by the complainant was not taken care of by the investigating agency and not being investigated. It is submitted that this again is apparently a false and misleading statement made before this Court, inasmuch as the earlier complaint filed by the complainant was registered in Crime No. 1505 of 1997 in which 'B' report came to be filed and subsequently the complaint itself came to be -dismissed, the revision petition also filed by the complainant came to be dismissed by the Revisional Court. Suppressing all these facts, the complainant has approached this Court and prayed for investigation of the same once again. The learned Counsel has taken me through both the complaints filed in Crime Nos. 1505 of 1997 and 138 of 2000. On going through both the complaints and looking at them comparatively, it is very clear that one is verbatim reproduction of the other including 'full stops' and 'commas'. It is to be noted that there was no public interest involved or alleged in either of these two complaints and only to get sympathy from the Court by suppression of facts and misleading statements, it is alleged that the complainant has got direction issued from this Court to practically reinvestigate the earlier investigations and the complaint of the respondent. This according to the learned Counsel for the petitioners is illegal and clearly an abuse of process of law and as such, the later proceedings in Crime No. 138 of 2000 and the consequential criminal case in C.C. No. 2388 of 2000 are liable to be quashed.
5. Apart from this defect and illegality, it is also contended that the act of the learned Magistrate in directing the police in ordering for re-investigation under Section 156(3) of the Criminal Procedure Code even after taking cognizance is illegal and in this regard, he has relied another decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and Ors., v V. Narayana Reddy and Ors., : 1976CriLJ1361
6. On the other hand, the learned Counsel appearing for the contesting respondent argued in support of the proceedings inter alia to contend as follows:
7. That there was no suppression of earlier proceedings; that no doubt on 16-12-1997, the complainant had filed complaint, the same came to be rejected or dismissed for default and as such, as the complainant also noticed involvement of public interest so as to safeguard the property in dispute, she had approached this Court and this Court had issued mandamus to the investigating agency who investigated the case. Relying upon the principles laid down in the case of Ram LalNarang v State (Delhi Administration), : 1979CriLJ1346 it is contended that second FIR or complaint is maintainable one. Insofar as the maintainability of the second complaint is concerned, the learned Counsel has also relied upon the decisions in Sushil Kumar Hazra and Anr. v Banka Mahato, : AIR1957Cal393 , Pramatha Nath Talukdar v Saroj Ranjan Sarkar, : AIR1962SC876 and Major General A.S. Gauraya and Anr. v S.N. Thakur and Anr, : 1986CriLJ1074 . On the basis of the principles laid down in the aforesaid cases, it is contended that in all these cases, the Courts have held that even if the first complaint is dismissed, there is no bar for the complainant to lodge second complaint. Distinguishing the law laid down in T.T. Antony's case, supra, it is argued that in that case, no doubt, the first complaint was dismissed but the second complaint came to be filed only on the basis of alleged finding of the Judicial Commission and the Director General of Police, which was held to be illegal. But it is contended that in the present case, it is this Hon'ble Court itself after considering the entire case in the public interest writ petition, itself has directed the investigating agency to register a case and since the case has been registered on the direction of this Court, the law laid down in T.T. Antony's case, supra, is inapplicable. It is further contended that even otherwise, as the petitioners were aware of the filing of the writ petition since they were parties to the same, no steps have been taken by them to get the order of this Court modified or annulled. Hence, the petitioners cannot make any grievance of alleged suppression of facts or abuse of process of law. In this regard, it is contended that now the petitioners have filed review petition before this Court for reviewing the earlier decisions in the writ petition. The proceedings need not be quashed as long as said review petition is pending. So far as taking cognizance in the second case is concerned, relying upon the decisions in the cases of V.N. Samant v K.G.N. Traders and Anr., : ILR1994KAR2991 State of Rajasthan v. Aruna Devi and Ors., : (1995)1SCC1 , Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of Andhra Pradesh and Ors., 1999(3) KCCR 2361and Jatinder Singh and Ors., v. Ranjit Kaur, : 2001CriLJ1015 it is contended that the second complaint is maintainable one. The learned Counsel for the respondent also contended that while exercising the inherent jurisdiction under Section 482 of the Criminal Procedure Code, as has been laid down by the Apex Court right from the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., : 1976CriLJ1533 till case of State of Haryana and Ors., v. Ch. Bhajan Lal and Ors., : 1992CriLJ527 and even the later decisions, this Court should be circumspect in exercis-ing the inherent jurisdiction. On these among other grounds, it is contended that the criminal petition is liable to be rejected.
8. I have heard the learned Counsels in detail and perused the records as well as various decisions relied by both the sides. There is no dispute regarding maintainability of second complaint as laid down in various pronouncements referred to above. As long back as in 1962, the Hon'ble Supreme Court in the case of Pramatha Nath Talukdar, supra, has laid down thus.--'There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under Section 203 of the Code of Criminal Procedure. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under Section 204(1) of the Code of Criminal Procedure, exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words, there must be good reasons, why the Magistrate thinks that there is 'sufficient ground for the proceeding' '. In the same decision, the Apex Court also has laid down the test to determine the exceptional circumstances which are.--(1) manifest error; (2) manifest miscarriage of justice; and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings'. In a later decision in the case of Major General A.S. Gauraya, supra, the Apex Court has observed thus.--'So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluk-dar's case, supra'.
9. Reconsidering all these pronouncements including the decision in the case of Ram Lal Narang, supra, in the case of T.T. Antony, supra, the Apex Court has laid down thus.--'Thus, there could be no second FIR and consequently there can be no fresh investigation on receipt of any subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences'. It follows that.--'If the gravamen of the charges in the two FIR the first and the second--is in substance and truth the same, registering the second FIR making fresh investigation and forwarding report under Section 173 of the Criminal Procedure Code will be irregular and the Court cannot take cognizance of the same'. However, at paras 28 and 29, in the same case, i.e., T.T. Antony's case, supra, the Apex Court has concluded thus.-
'28. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that Subsection (8) of Section 173 of the Cr. P.C. empowers the police to make further investigation, obtain further evidence (both oral anddocumentary) and forward a further report or reports to the Magistrate. In Ram Lal Narang's case, supra, it was, however, observed that it would be appropriate to conduct farther investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) of the Cr. P.O. it would clearly be beyond the purview of Sections 154 and 156 of the Cr. P.O. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 of the Cr. P.C. or under Article 226/227 of the Constitution.
29. Coming to the facts of this case, which are not free from political overtones, the incident which gave rise to registering of FIRs took place on November 25, 1994 on the occasion of the visit of the Minister to Alakkandy Complex at Kuthuparamba, Tellicherry Road (Kannur District), for inauguration of the evening branch of the Co-operative Urban Bank. The events that developed there led to firing by police at two places: (i) in the vicinity of the town hall for which FIR was lodged and Crime No. 353 of 1994 under Sections 143, 147, 148, 332, 353, 324 and 307 read with Section 149 of the IPC, Section 3(2)(e) of the PDPP Act and Sections 3 and 5 of the Explosive Substances Act, was registered; and (ii) in the vicinity of the Police Station, Kuthuparamba in respect of which FIR was filed and Crime No. 354 of 1994 of Kuthuparamba Police Station under Sections 143, 147, 148, 307 and 427 read with Section 149 of the IPC and Section 3(2)(e) of the PDPP Act was registered. While the investigations on the basis of the said FIRs were pending, the report of Mr. K. Padmanabhan Nair, Inquiry Commission, was submitted to the Government. On June 30, 1997, the Additional Chief Secretary wrote to the Director General of Police that the Government had accepted the report of the Commission and directed that the legal action be taken against those responsible on the basis of the findings of the Commission. On July 2, 1997, the Director General of Police, however, wrote to Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a Senior Officer. Two days thereafter, the Inspector General of Police added his own remarks--'firing without justification by which people were killed amounted to murder'--and ordered the Station House Officer to register a case under the appropriate sections and for-ward the investigation copy of the FIR to the Deputy Inspector General of Police (North Zone) for urgent personal investigation. On the date when the Additional Chief Secretary wrote to the Director General of Police, the investigations initiated in the said two crimes relating to the same incident were in progress. The investigating agency should have taken advantage of the report of the Commission for a proper further investigation into the case. On the facts which might come to light during investigation, if necessary, the investigating agency should have altered the offences under appropriate section of the relevant Acts and concluded the investigations. In view of the orders of the Director General of Police to register a case and on the further direction of the Inspector General of Police, the officer in charge of Police Station registered Crime No. 268 of 1997 of Kuthuparamba Police Station. A comparison and critical examination of the FIRs in Crime Nos. 353 and 354 of 1994 on one hand and FIR in Crime No. 268 of 1997 on the other, discloses that the date and place of occurrence are the same; there is alluding reference to the deaths caused due to police firing in the FIRs in Crime Nos. 353 and 354 of 1994. In any event, that fact was evident on the scene of occurrence. The narration of events, which we need not repeat here, is almost the same. The additional averments in Crime No. 268 of 1997 are based on the findings in the report of the Commission. Having regard to the test laid down by this Court in Ham Lal Narang's case, supra, with which we are in respectful agreement, we find that in truth and substance the essence of the offence in Crime Nos. 353 and 354 of 1994 is the same as in Crime No. 268 of 1997 of Kuthuparamba Police Station. In our view, in sending information in regard to the same incident, duly enclosing a copy of the report of the Commission of Inquiry to the Inspector General of Police for appropriate action, the Additional Chief Secretary adopted the right course of action. Perhaps the endorsement of the Inspector General of Police for registration of a case misled . the subordinate police officers and the said letter with regard to the incident of November 25, 1994 at Kuthuparamba was registered again under Section 154 of the Cr. P.C. which would be the second FIR and, in our opinion, on the facts of this case, was irregular and a fresh investigation by the investigating agency was unwarranted and illegal. On that date the investigations in the earlier cases (Crime Nos. 353 and 354 of 1994) were pending. The correct course of action should have been to take note of the findings and contents of the report, streamline the investigation to ascertain the true and correct facts, collect the evidence in support thereof, form an opinion under Sections 169 and 170 of the Cr. P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) of the Cr. P.C. to the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making a fresh investigation is not permissible underthe scheme of the provisions of the Criminal Procedure Code as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No. 353 or 354 of 1994 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law'.
10. After detailed consideration of the rival contentions and the law declared by the Apex Court, in my view, the subsequent complaint and proceedings initiated thereunder are totally not maintainable. It is undisputed that the complainant had approached the learned Magistrate by way of private complaint earlier on 16-12-1997 alleging commission of certain offences against the petitioners. It is also not in dispute that after enquiry, the police filed 'B' report, which came to be challenged by the complainant by way of protest petition and thereafter the complaint came to be dismissed for non-prosecution. Aggrieved by the same, the complainant approached the Revisional Court in Criminal Revision Petition No. 293 of 1999 both challenging the order of the dismissal of the complainant for default as well as on merits. It is also undisputed that the Revisional Court dismissed the revision petition on 2-5-2000 on merits after giving due opportunity to the complainant to substantiate her allegation. This is in respect of the first complaint of the respondent. It is to be noted that while this complaint was even pending, the complainant suppressing the initiation of action by the Magistrate and the investigating agency and the proceedings in the Court, has approached this Court in Writ Petition No. 1507 of 1998 alleging that the complaint has not been enquired into by the Magistrate or the investigating agency. This is factually an incorrect and false statement. In fact, as long back as on 16-12-1997 itself, the learned Magistrate had referred the first complaint under Section 156(3) of the Criminal Procedure Code to the jurisdictional police for investigation and enquiry, and the police had registered a case in Crime No. 1505 of 1997 of Upparpet Police Station and taken investigation. Even immediately thereafter i.e., 13-3-1998, the Investigating Officer had filed 'B' report to which protest petition was filed and proceedings before the Court were continued till 26-6-1999. It is to be noted that even though in the writ petitions, allegations in the nature of public interest litigations were made neither in the first or second complaint which is a lengthy written complaint filed, such allegations are forthcoming. The first and the second complaint as noted earlier are verb ethically one and the same which disclose alleged commission of offence by the petitioners over a dispute in respect of a property. It is also to be noted that the writ petition was pending before this Court for almost two years. Between the pendency of the writ petition, the criminal complaint filed by the respondent came to be dismissed and thereafter the revision petition filed was also dismissed. None of these facts were brought to the notice of this Court while arguing the alleged public interest litigation. As such, clearly it was suppression of fact and abuse of process of law. The best course available to the complainant was either to challenge the order in Criminal Revision Petition No. 293of 1999 or as held by the various pronouncements or to file second complaint immediately. But, the complainant had chosen a wrong path by approaching this Court in the guise of public interest litigation writ petition and obtained a direction from this Court to investigating agency to register a fresh complaint and practically fresh investigation. This, in my view, is clearly an abuse of process of law as laid down by the Apex Court in Pramatha Nath's case, supra, as well as in T.T. Antony's case, supra. Even applying the decisions in Pramatha Nath's case, supra, it cannot be said that any exceptional circumstances are made out by the complainant for lodging the second complaint. As such, since on the basis of an earlier complaint, Magistrate had already taken cognizance of the offence, merely because of suppression of facts the respondent-complainant had obtained direction from this Court in writ petition, the present registration of case and investigation, in the light of T.T. Antony's case, supra, is not at all maintainable one and only on this ground, the criminal petition is to be allowed. The various decisions referred to by the learned Counsel for the respondent are not applicable to the facts and circumstances of the present case. In all these decisions there was neither any suppression of facts or abuse of process of law. Since I find lack of bona fides on the part of the complainant in obtaining a direction from this Court for re-registration of a case and practically re investigation, I am of the view that in the light of the law laid down by the Apex Court in Bhajanlal's case, supra, the registration of the case in Crime No. 138 of 2000 and the consequential C.C. No. 2388 of 2000 on the file of the learned Magistrate and the entire proceedings thereon are illegal and liable to be quashed.
11. In the result, the petitions are allowed. The criminal proceedings in Crime No. 138 of 2000 and consequently, registration of case C.C. No. 2388 of 2000 before the learned Magistrate are hereby quashed.