K.S. Udayabhanu v. State of Kerala and Venukuttan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933** **Crl.MC.No. 3262 of 2011()** **------------------------------** **CC.550/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY** **....................** ## **PETITIONER(S): ACCUSED** **-------------------------------** **K.S.UDAYABHANU,S/O.SREEDHARAN,CIRCLE INSPECTOR OF POLICE,HARIPPAD POLICE STATION, HARIPPAD,ALAPPUZHA DISTRICT.** **BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN** ## **RESPONDENT(S): STATE/DEFACTO COMPLAINANT** **-----------------------------------------------------------** **1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **2. VENUKUTTAN,AGED 42 YEARS,S/O.KOCHU NARAYANAN ACHARY,LAKSHMI BHAVAN,MEKKADUMURI, PANMANA VILLAGE,KARUNAGAPPALLY - 693 204.** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA R-2 BY ADVS. SRI.B.MOHANLAL** **SRI.T.PRASAD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **CRMC. NO.3262/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE 1:COPY OF THE COMPLAINT FILD AS CRL. MP. NO.8801/2008 DATED 10/06/2008 ALONG WITH THE SWORN STATEMENT GIVEN BY THE 2ND RESPONDENT.** **ANNEXURE 2:COPY OF THE PRIVATE COMPLAINT DATED 13/11/2007 FILD BY THE 2ND RESPONDENT.** **ANNEXURE 3:COPY OF THE ORDER IN C.M.P. NO.14664/2007 DATED 21/04/2008 PASSED BY THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE, KARUNAGAPPALLY. ANNEXURE 4:COPY OF THE ORDER SHEET IN C.C. NO.550/2009 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE, KARUNAGAPPALLY.** ## **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE** ## **svs** ## **N.K.BALAKRISHNAN, J ----------------------------------------Crl.M.C. No. 3262 of 2011 -----------------------------------------Dated this the 9th November, 2011.** ## **ORDER** Petitioner is the accused in CC.550/09 of JFCM, Karunagappally. That was a private complaint filed by the second respondent alleging offences against the accused under Sections 342 and 324 IPC. On 31.03.2007, at about 08:00 am while the petitioner was working as Sub Inspector of Police, Chavara he voluntarily caused hurt to the complainant (R2) from the police station and R2 was illegally confined in that police station. Another allegation made in the complaint was that the relatives of the wife of the R2 had abducted R2 on 30.032007. It was further alleged that R2 was manhandled by the persons who had abducted him. 2. It is contended by the petitioner that the complaint was earlier filed by the complainant as Criminal M.P. 14664/07 before JFCM, Karunagappally against 9 persons including the petitioner herein. Annexure – 2 is that ## **Crl.M.C. No. 3262 of 2011 -: 2 :-** complaint dated 13.11.2007. The petitioner was arrayed as the 9[th] accused herein. After conducting enquiry under Section 202 Cr.P.C., the learned Magistrate dismissed the complaint as against this petitioner under Section 203 Cr.P.C. evidently because there was no material to proceed against this petitioner. Since cognizance was taken pursuant to that complaint only against the other 8 accused persons and since the complaint against this petitioner was dismissed under Section 203 Cr.P.C., the complainant cannot again file a complaint putting forth the very same allegation. 3. The learned counsel for the petitioner would submit that Annexure – A1 complaint is the verbatim reproduction of Annexure – A2 complaint, except to the extent that instead of describing the petitioner as the 9[th] accused in Annexure – A1, he was described as accused. It is also submitted that in Annexure – A1 complaint the fact that Annexure – A2 complaint was dismissed to the extent it ## **Crl.M.C. No. 3262 of 2011 -: 3 :-** related to the petitioner herein was conveniently suppressed by the petitioner. It is not a case where the additional fact or fact which was omitted to be considered by the court in Annexure – A2 complaint was highlighted subsequently to convince that there was change of circumstances and additional materials so as to proceed against the petitioner. Therefore, the learned counsel for the petitioner submits that since the first complaint was dismissed as against the petitioner, the remedy open to the petitioner was to challenge that order before the superior courts and not to re-agitate the same on the same set of facts. 4. The learned counsel for the respondent/complainant would submit that as per Annexure -2, cognizance was not taken against the petitioner, presumably, because no sanction order was obtained to proceed against the petitioner. But nothing has been mentioned to show that the learned Magistrate was inclined to take cognizance of ## **Crl.M.C. No. 3262 of 2011 -: 4 :-** the case against the petitioner for want of sanction under Section 197 Cr.P.C.. Therefore, that argument advanced by the learned counsel for the respondent cannot be sustained. It could not be stated as to what was the additional factor or other circumstances which the complainant can bank upon to contend that the second complaint is not unsustainable. The learned counsel for the petitioner has relied upon the decision in **Makesh Chand Vs.Janardhana Reddy and another AIR 2003 SC 702** to fortify his submission that if the earlier complaint was dismissed by the court upon full consideration of the case against the petitioner, the second complaint on the same facts could be entertained only in exceptional circumstances. The learned counsel for the respondent would submit that there is nothing in law which prohibits the entertainment of second complaint on the same allegation when the previous complaint had been dismissed under Section 203 of Cr.P.C. But exceptional circumstances must exist for the entertainment of a second ## **Crl.M.C. No. 3262 of 2011 -: 5 :-** complaint on the same allegation. In other words, the order taking cognizance must reflect that the court could see good reasons to hold that there is sufficient ground for proceeding with the complaint. Though the previous complaint on the same allegation was dismissed under Section 203 of Cr.P.C. the learned counsel for the petitioner would submit that there was no occasion for the Magistrate to find whether there was exceptional circumstances requiring entertainment of this complaint since the complainant suppressed the factum of dismissal of the earlier complaint under Section 203 Cr.P.C. In ## **Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCR** ## **125,** it was held by the Apex Court: “It is now well-settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out..” ## In **Mahesh Chand's case** cited supra it was held by the ## Apex Court: “It is settled law that there is no statutory bar in filling a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning ## **Crl.M.C. No. 3262 of 2011 -: 6 :-** any reasons, the Magistrate under Sec.204, Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramadanath Nath Taluqdar”s case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.” ## In **Pramada Nath vs. Thalukdas case AIR 1962 SC** ## **966** it was held: “Therefore, if he has not misdirected himself as to the scope of the enquiry made under Sec.202, Criminal Procedure Code and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of his dismissal under Sec.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 circumstance, i.e. where the previous order passed on 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” “ The dictum laid down in **Pramada Nath's** case cited supra was quoted with approval by the Apex Court in **Poonam Chand Jain and another vs. Fazru (2010) 2** ## **Crl.M.C. No. 3262 of 2011 -: 7 :-** ## **SCC 631.** 5. The learned counsel for the petitioner would submit that the learned Magistrate has not considered these aspects evidently because filing of the earlier complaint and the dismissal of the case as against the petitioner was not brought to the notice of the learned Magistrate. 6. It is also argued by the learned counsel for the petitioner that there is absolutely nothing in the complaint or in the sworn statement given by the complainant to show that any deadly weapon was used by the accused to inflict injuries so as to bring the offence under Section 324 IPC. It was stated that he was only beaten by the accused evidently by his hands and not by using any weapon. This contention has been advanced by the learned counsel for the petitioner in support of his contention that the learned Magistrate should not have taken cognizance of the complaint since it was barred by limitation. The offence disclosed would come only under Section 342 and 323 IPC. Since the punishment ## **Crl.M.C. No. 3262 of 2011 -: 8 :-** prescribed for the offence is only imprisonment for a term not exceeding one year, the court should not have taken cognizance of the offence after a period of one year from the date of commencement of the offence as there was no application for condonation of delay. The date of commission of the offence is shown as 31.03.07. The Annexure – A1 complaint was filed on 16.06.2008. That is beyond the period of one year mentioned above. No petition was filed by the complainant under Section 473 Cr.P.C. to condone the delay in filing the complaint nor did the Magistrate consider that aspect presumably because it was not brought to the notice of the learned Magistrate. Since there is nothing to show that any weapon was used to cause hurt to the complainant, the offence would fall only under Section 323 IPC. Since the complaint was filed long after expiry of one year from the date of the offence, on that ground also, the cognizance taken by the learned Magistrate must be held unsustainable. Since the second ## **Crl.M.C. No. 3262 of 2011 -: 9 :-** complaint was filed suppressing the factum of filing of the first complaint and dismissal of the case as against the petitioner under Section 203 Cr.P.C., I find that the cognizance taken by the learned Magistrate based on the second complaint without showing any reason whatsoever as has been mentioned in decisions cited supra, is bad and is hence liable to be set aside. In the result, this petition is allowed. Further proceedings in CC.550/09 on the file of JFCM, Karunagappally as against this petitioner will stand quashed. ## **N.K. BALAKRISHNAN, JUDGE** smvd