A.H.K. Pillai, Premachandra, Natarajan T A, Anitha M.K. and M.A. Vijayan v. State of Kerala and P.K. Salim Babu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 CRL.MC NO. 3645 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CC 1372/2018 (MP NO.1649 OF 2012) OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALAPPUZHA** ## **PETITIONERS/ACCUSED:** **1 A.H.K.PILLAI AGED 74 YEARS, B-48, DIVISIONAL ENGINEER (RETIRED) SANKARI, ASRAMAM ROAD, NETTAYAM, THIRUVANANTHAPURAM-695013. 2 PREMACHANDRA AGED 66 YEARS, CHIEF GENERAL MANAGER (RETIRED), DISCIPLINARY AUTHORITY, BSNL KERALA CIRCLE, THIRUVANANTHAPURAM. 3 NATARAJAN T AGED 65 YEARS, FORMER GENERAL MANAGER, BSNL, ALAPPUZHA AND CHIEF GENERAL MANAGER (RETIRED) SOUTHERN TELECOM REGION, BSNL, CHENNAI. 4 ANITHA M.K. AGED 62 YEARS SUB DIVISIONAL ENGINEER (RETIRED), BSNL KAYAMKULAM. 5 M.A.VIJAYAN AGED 65 YEARS TELECOM MECHANIC (RETIRED), BSNL PULLUKULANGARA. BY ADVS. SRI.P.J.PHILIP, SC, BSNL SRI. K.RAMKUMAR (SENIOR)** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** Crl.M.C No. 3645 of 2019 2 **2** **P.K.SALIM BABU, S/O.POOKUNJU, KANJIRATHIL VEEDU, CHERAVALLY, KAYAMKULAM, JTO PURSUIT CELL (RETIRED VOLUNTARILY) BSNL ALAPPUZHA.** **BY ADV SRI.K.A.MANZOOR ALI** **PP-SRI.G.SUDHEER** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **10.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3645 of 2019 3 **A. BADHARUDEEN, J. ---------------------------------------Crl.M.C.No.3645 of 2019 ---------------------------------------Dated this the 10[th] day of November, 2022** **C.R.** ## **ORDER** This petition has been filed under Section 482 of the Code of Criminal Procedure, and the petitioners are the accused in CC No. 1372/2018 pending before the Judicial First Class Magistrate Court, Alappuzha, were they alleged to have committed offences punishable under Section 417, 464, 465, 471, 506, 120B r/w Section 34 of IPC. The said case arose on cognizance of Annexure.A1 complaint viz. CMP No. 1649/2012 filed by the 2[nd] respondent as complainant before the Magistrate Court. 2. Heard the learned senior counsel, Adv.K.Ramkumar and Adv. K.A.Manzool Ali appearing for the 2[nd] respondent in detail. 3. It is submitted by the learned counsel for the petitioners that, Annexure.A1 complaint and Annexure.A5 order of cognizance are based on the same sets of Crl.M.C No. 3645 of 2019 4 allegations as raised in Annexure.A12 complaint, earlier filed by the same complainant. Learned counsel for the petitioners submitted that, Annexure.A12 complaint was rejected by the Magistrate Court as per Annexure.A2 order dated 06.08.2011. Annexure.A2 order was challenged before Additional Sessions Judge, Mavelikkara in Crl.R.P.No.25/2011 and the same was dismissed as per Annexure.A3 order. Annexure.A3 was taken before this Court. This Court also dismissed the petition holding that the petitioners raised purely service matter which could have been agitated before the appropriate forum as per order dated 31.07.2014 produced as Annexure.A4. 4. The 2[nd] respondent herein challenged Annexure.A4 before the Apex Court and the Apex Court also dismissed the same vide order in SLP (Crl) No.8270/2014 dated 10.11.2014 and the copy of the same is Annexure.A13 herein. 5. The learned counsel for the petitioners (who are/were employees of BSNL), read out the relevant paragraphs in Annexure.A12 in comparison with relevant paragraphs in Annexure.A1 to contend that, dispute arose Crl.M.C No. 3645 of 2019 5 out of disciplinary actions against the defacto complainant while in service, led to filing of Annexure.A12 and now Annexure.A1 complaint. It is submitted further that, two among the accused in Annexure.A12 are arrayed as accused in the 2[nd] complaint (Annexure.A1). 6. Learned counsel for the petitioners placed decision of the Apex Court reported in _**[2010 (2) SCC 631] Poonam Chand Jain and Anr Vs. Fazru**_ to contend that, even though a 2[nd] complaint on the same sets of facts would lie under law, the same could be on exceptional circumstances and in this matter no exceptional circumstances could be gathered. Therefore Annexure.A1 complaint arose out of the same plank would not lie. 7. Therefore the present complaint Annexure.A1 and the cognizance thereof as per Annexure.A5 are liable to be quashed, is the submission of the learned senior counsel. 8. Repelling these contentions, the learned counsel for the 2[nd] respondent argued that, three complaints altogether filed by the 2[nd] respondent and when the Crl.M.C No. 3645 of 2019 6 complaint filed as CMP No. 2329/2011 was dismissed, the petitioner took the matter before this Court vide Crl.R.P. No. 2229/2012. As per order dated 04.07.2013 this Court set aside the order of the Magistrate and remanded the matter before the Magistrate Court for fresh consideration. Therefore, this complaint also would lie and as such there is no interference is required to upset Annexure.A5 order or Annexure.A1 complaint. 9. While adverting the rival contentions, the legal questions emerge for consideration are, (1) whether a second complaint would lie on the same sets of facts? And (2) if a second complaint would lie on the same sets of facts on what circumstances? 10. In this regard, the law regarding filing of second complaint required to be referred. 11. In fact, as early in the year 1962, the Apex Court in the decision reported in _**Pramatha Nath Talukdar and Another Vs. Saroj Ranjan Sarkar (AIR 1962 SC 876)**_ considered the scope of second complaint and it was held in paragraph 48 as under: “......An order of dismissal under S. 203, Crl.M.C No. 3645 of 2019 7 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 into......" ## 12. In _**Mahesh Chand vs. B. Janardhan Reddy and another - (2003) 1 SCC 734**_ , a three Judge Bench of the Apex Court considered this question again. In paragraph 19 the Apex Court held as under: “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 Crl.M.C No. 3645 of 2019 8 process if there is sufficient ground for proceeding. 13. In Mahesh Chand (supra) the Apext Court relied on the ratio in Pramatha Nath (supra) and held if the first complaint had been dismissed the second complaint could be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath (supra) were reiterated. 14. As such, the ratio in Pramatha Nath (supra) is still holding the field. 15. In a latest decision reported in _**2020 KHC 6230, Samta Naidu and another V. State of Madhya Pradesh and another**_ , the Apex Court reiterated this principle while upholding dismissal of a second compliant where the core allegations in both complaints were identical. 16. Thus the law emerges is that a second complaint on the same sets of facts would lie and there is no bar to entertain a second complaint on the same sets of facts. But there shall be exceptional circumstances to entertain a second complaint. The exceptional circumstances are; where the previous order was passed on an incomplete record or Crl.M.C No. 3645 of 2019 9 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 into. Further, 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. However the core allegations were identical, without sufficient explanation a second complaint will not lie. 17. In fact, compliant in Crl.M.P. No. 2329 of 2012 which has been remanded by this Court is not the subject matter of this petition. Therefore, I am not inclined to address on the same. 18. Coming back to the sustainability of Annexure.A1, it could be gathered that, in Annexure.A12 and A1, the 2[nd] respondent alleges commission of offences Crl.M.C No. 3645 of 2019 10 punishable under Sections 465, 465, 468, 471,120b r/w Section 34 of IPC and the substratum on which the entire case emerges is on the basis of a major penalty charge sheet given to the 2[nd] respondent on 22.09.2010, as could be gathered from his own statement recorded in the present CMP No. 1649/2012, as PW1, and produced as Annexure.A11. It is noticed that as rightly pointed out by the learned senior counsel, due to issuance of major penalty charge sheet against the 2[nd] respondent, he initially filed Annexure.A12 complaint and the matter reached upto the Hon'ble Supreme Court and the Apex Court also not accepted the contentions of the 2[nd] respondent and eventually the complaint stands dismissed. 19. It is noticed further that, it was thereafter Annexure.A1 complaint was filed and the allegations in these complaints are more or less one and the same. It is pertinent to note that, the entire allegations are the outcome of disciplinary actions against the 2[nd] respondent during his service in BSNL. Thus it is discernible that, the 2[nd] respondent filed Annexure.A1 complaint by reiterating the earlier allegations in a different form. Further his Crl.M.C No. 3645 of 2019 11 statement as PW1 also in similar fashion. In fact, no exceptional circumstances to be brought to hold that Annexure.A1 would lie in the eye of law. It is difficult to hold that, the complaint or Annexure.A11 statement of the 2[nd] respondent not in any way improved the case that had been put up earlier and therefore, cognizance taken by the Magistrate as per Annexure.A5 found to be illegal and therefore the second complaint as well as the cognizance thereof are liable to be quashed. Accordingly Annexure.A1 complaint and Annexure.A5 order of cognizance stand quashed. ## **Sd/-** SK/10.11. **A. BADHARUDEEN JUDGE** Crl.M.C No. 3645 of 2019 12 ## **APPENDIX OF CRL.MC 3645/2019** |**PETITIONER ANNEXURES**|**PETITIONER ANNEXURES**| |---|---| |**ANNEXURE A1**|**CERTIFIED COPY OF THE PRIVATE COMPLAINT**| ||**NUMBERED AS C.C.1372 OF 2018**| ||**(M.P.NO.1649/2012) OF THE JUDICIAL FIRST**| ||**CLASS MAGISTRATE COURT, ALAPPUZHA DATED**| ||**30.6.2012.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER IN C.M.P.2322 OF 2011**| ||**IN THE COURT OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE, KAYAMKULAM DATED 6.8.2011.**| |**ANNEXURE A3**|**TRUE COPY OF THE ORDER IN CRIMINAL R.P.NO.25**| ||**OF 2011 IN THE COURT OF ADDITIONAL SESSIONS**| ||**JUDGE, MAVELIKKARA DATED 25.7.2013.**| |**ANNEXURE A4**|**TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.3974**| ||**OF 2013 DATED 31.7.2014.**| |**ANNEXURE A5**|**CERTIFIED COPY OF THE ORDER IN C.C.NO.1372**| ||**OF 2018 OF THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT, ALAPPUZHA DATED 5.7.2018.**| |**ANNEXURE A6**|**TRUE COPY OF THE SUMMONS ISSUED TO FIRST**| ||**PETITIONER DATED 3.9.2018.**| |**ANNEXURE A7**|**TRUE COPY OF THE SUMMONS ISSUED TO SECOND**| ||**PETITIONER DATED 3.9.2018.**| |**ANNEXURE A8**|**TRUE COPY OF THE SUMMONS ISSUED TO FOURTH**| ||**PETITIONER DATED 3.9.2018.**| |**ANNEXURE A9**|**TRUE COPY OF THE SUMMONS ISSUED TO FIFTH**| ||**PETITIONER DATED 3.9.2018.**| |**ANNEXURE A 10**|**TRUE COPY OF THE JUDGMENT IN OP(CAT)**| ||**NO.826/13 DATED 4.3.2013 OF THIS HON'BLE**| ||**COURT.**| |**ANNEXURE A 11**|**TRUE CERTIFIED COPY OF SWORN STATEMENT BY**| ||**SALIM BABU DATED 25TH AUGUST OF 2012 IN CMP**| ||**NO.1649 OF 2012 (CC 1372/18) OF JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA**| |**ANNEXURE A 12**|**TRUE COPY OF COMPLAINT BY SALIM BABU DATED**| ||**7TH APRIL OF 2011 NUMBERED AS CMP NO 2322 OF**| ||**2011 (CC 1372/18) OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT-1, KAYAMKULAM**| |**ANNEXURE A 13**|**TRUE COPY OF ORDER BY SUPREME COURT OF INDIA**| ||**IN SLP (CRL) NO 8270 OF 2014 DATED**| ||**10.11.2014**| - **ANNEXURE A 14 TRUE COPY OF JUDGMENT IN CRIMINAL REVISION NO 2229/2012 DATED 4TH JULY, 2013 OF THIS COURT** Crl.M.C No. 3645 of 2019 13 **RESPONDENTS' EXHIBITS: ANNEXURE R2(A) THE COPY OF THE PROCEEDINGS OF THE COURT BELOW IN C C NO.1323/2018 OF JFCM COURT, ALAPPUZHA-1**