High Court of KeralaSingle Judge2014-07-21Disposed of. Crl.M.C Nos.672 & 2197 of 2012 dis...

Rajamma v. State of Kerala and Usha Nandappan (Crl.M.C Nos. 672 of 2012 and 2197 of 2012, High Court of Kerala at Ernakulam)

Case / Petition Number:Crl.MC No. 672 of 2012; Crl.M.C No. 2197 of 2012; C.C. No. 2255/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-07-21
Court Decision / Holding: The Court did not quash Annexure A1. It held that the issue of maintainability and the nature of the complaint should be considered by the trial court at the time of framing the charge. The Court directed that the petitioners/accused may seek discharge before the court below and that personal appearance need not be insisted for hearing on charge. All pending interlocutory applications were dismissed. The petitions were disposed of with these directions.
Final Disposition: Disposed of. Crl.M.C Nos.672 & 2197 of 2012 disposed of with directions regarding discharge at charge stage; no quashing of Annexure A1; all pending interlocutory applications dismissed.

Parties to the Case

Appellants / Petitioners

Rajamma (1st accused) and accused Nos. 2 to 12 in C.C. No. 2255/2011, JFMC, Kolencherry (unnamed in this document)

Respondents

State of Kerala
Usha Nandappan

Legal Representation & Advocates

Counsels for Petitioners

• Sri Philip T. Varghese
• Sri Thomas T. Varghese
• Sri A. M. Thombra
• Sri. SHBHA Abraham

Counsels for Respondents

• Public Prosecutor, Sri Githesh R.
• Sri Sunny P Markose
• Sri G. Krishnakumar
• Sri K. A. Ani Joseph

Case Synopsis & Summary

This is a common order by the High Court of Kerala (Single Judge) in Crl.M.C Nos. 672 of 2012 and 2197 of 2012 arising from C.C. No. 2255/2011 before the Judicial First Class Magistrate, Kolencherry. The petitioner is Rajamma, the first accused, with 11 other co-accused, challenging the maintainability of Annexure A1, a second complaint filed during the pendency of a first complaint (Annexure A2) concerning alleged defamation and forged documents. Annexure A1 accused that multiple persons conveyed defamatory statements against the complainant. The complainant had already instituted a complaint on 05-05-2009; the first case was partially enquired, and on 30-05-2011 the Court discharged the accused under Section 245(1) Cr.P.C. The petitioner contends that two complaints on the same transaction are impermissible unless exceptional circumstances exist. The respondent contends that Annexure A2 involved forgery and false documents, while Annexure A1 concerns defamation; the two offences are distinct. The High Court noted the authorities on maintainability of a second complaint (Poonam Chand Jain v. Fazru) and Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, but held that this Court should not resolve the issue under Section 482 Cr.P.C and that it should be left for the trial court at the charge-framing stage. The matter was disposed with directions that the accused may seek discharge, and personal appearance need not be insisted for charge hearing. All pending interlocutory applications were dismissed.

Provisions of Law Cited

Section 482 Cr.P.C.Sections 182, 416, 463, 464, 469 IPCSection 244 Cr.P.C.Section 245 Cr.P.C.

Legal Doctrines & Maxims

Principle of maintainability of a second complaint under exceptional circumstances (as discussed in Poonam Chand Jain v. Fazru)
Pramatha Nath Talukdar v. Saroj Ranjan Sarkar — discussion on maintainability of second complaint

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that two complaints on the same transaction are impermissible. Relying on Poonam Chand Jain v Fazru (2010) 2 SCC 631, they argued that Annexure A1 (defamation) should be quashed as the first complaint (Annexure A2) had been discharged; thus, there was no maintainable second complaint. They argued for discharge and raised the issue for detailed consideration at the time of framing of charge. They urged that the Court under Section 482 Cr.P.C should not entertain a new factual framing, but the matter should be left for the trial court to decide on charge and discharge issues.

Contentions of Respondents

The respondents asserted that Annexure A1 relates to defamation by the accused, whereas Annexure A2 involved forging and false documents; hence, two different offences under different sections were involved, justifying the maintenance of the second complaint. They contended that the underlying facts were distinct; the defamation complaint could proceed independently of the forgery matter, and the accused could be charged appropriately.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Poonam Chand Jain and Another v. Fazru	(2010) 2 S.C.C. 631	Mentioned Only	Cited as a precedent on maintainability of a second complaint; the court notes the principle but does not apply it decisively at this stage, leaving the issue for the trial court.
Pramatha Nath Talukdar v. Saroj Ranjan Sarkar	AIR 1962 S.C. 876	Mentioned Only	Cited to discuss maintainability concerns; treated as background authority rather than a binding ruling in this context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936** ## **Crl.MC.No. 672 of 2012** ## **-----------------------------------** ## **C.C.NO. 2255/2011 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT , KOLENCHERRY** ## **-------------** ## **PETITIONER / 1ST ACCUSED :** **---------------------------------------------** **RAJAMMA, W/O. KARUNAKARAN, KALAMPURATH HOUSE, KOKKAPILLY.P.O., ERNAKULAM - 682 305.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.ALEX M.THOMBRA SMT. SHBHA ABRAHAM** ## **RESPONDENTS / STATE AND COMPLAINANT :** **-------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **2. USHA NANDAPPAN,** **W/O. LATE NANDAPPAN, KONATTU PUTHENPURAYIL HOUSE, MURIYAMANGALAM, KOKKAPPILLY.P.O., ERNAKULAM - 682 305.** **R1 BY PUBLIC PROSECUTOR SRI.GITHESH.R R2 BY ADVS. SRI.SUNNY P MARKOSE SRI.G.KRISHNAKUMAR SRI.K.A.ANI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-07-2014, ALONG WITH Crl.MC.No. 2197 OF 2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 672 of 2012** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1 : TRUE COPY OF THE COMPLAINT FILED IN THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOLENCHERRY DATED 24-02-2011 AS C.C.NO. 2255/2011.** **ANNEXURE A2 : TRUE COPY OF THE COMPLAINT FILED IN THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOLENCHERRY DATED 05-05-2009 AS CMP NO. 5622/2009.** **ANNEXURE A3 : TRUE COPY OF THE ORDER SHEET IN C.C. NO. 604/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KOLENCHERRY.** **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C Nos.672 & 2197 of 2012 -----------------------------------------------Dated this the 21[st] day of July, 2014.** ## **C O M M O N O R D E R** Petition filed under Section 482 Cr.P.C. For convenience, Crl.M.C No.672/2012 is taken as the leading case. First accused in C.C No.2255/2011 on the file of Judicial First Class Magistrate Court, Kolencherry is the petitioner in Crl.M.C No.672/2012. Accused 2 to 12 in the same case are the petitioners in Crl.M.C No.2197/2012. 2. Heard the learned counsel for the petitioners and the learned counsel for the contesting respondent. 3. Annexure A1 is the complaint. Case of the complainant is that all the 12 accused persons together caused to file a complaint before police containing per se defamatory statements about the complainant. The complainant was under the impression that the petitioner in Crl.M.C No.672/2012 (first **Crl.M.C Nos.672 & 2197 of 2012 2** accused) was the only person responsible for preferring a police complaint alleging false statements about her. Therefore, she approached the learned Magistrate with Annexure A2 complaint against the first accused alleging offences punishable under Sections 182, 416, 463, 464 and 469 I.P.C. Annexure A3 is the calender in respect of C.C No.604/2009 pertaining to Annexure A2 complaint. It can be seen that some of the accused in Annexure A1 complaint were cited as witnesses in Annexure A2 proceedings. From Annexure A3 calender, it could be seen that after recording the sworn statement of the complainant and the witnesses, the trial court proceeded to examine the witnesses under Section 244 Cr.P.C. On 25-11-2010, the complainant and accused were present before the court below. Two witnesses were also present. But they were not examined on that date and **Crl.M.C Nos.672 & 2197 of 2012 3** they were bound over. On the next hearing date, i.e., on 10-02-2011, the complainant was present and the accused was absent. Two witnesses were present. On that day, learned counsel for the complainant submitted that he gave up the witnesses. Recording that fact, the evidence was closed. It was posted for hearing initially on 24-03-2011 and then to 03-05-2011. After hearing both sides, the court below passed an order on 30-05-2011 discharging the accused under Section 245 (1) Cr.P.C. Learned counsel for the petitioners submitted that the following dates are relevant. Complainant filed the first complaint on 05-05-2009. The accused in that case was on discharged 30-05-2011. During the currency of that complaint, another complaint Annexure A1 complaint (second complaint) was filed. Learned counsel contended that there **Crl.M.C Nos.672 & 2197 of 2012 4** cannot be two complaints maintained at the same time in respect of same transaction. In answer to this argument, learned counsel for the complainant/respondent submitted that Annexure A2 complaint was alleging offences in respect of creation of false documents and forgery. The second complaint, according to the learned counsel for the complainant, is in respect of defamation. It is also submitted that the complainant was made to believe that the signature of certain witnesses, cited by her in the first complaint, was forged by the first accused. Later, it was revealed that they were also parties to making the defamatory petition. In essence, the two complaints are in respect of different offences, contended the learned counsel for the complainant. 4. Learned counsel for the petitioners relying on a decision in _**Poonam Chand Jain and Another v. Fazru ((2010 )**_ **Crl.M.C Nos.672 & 2197 of 2012 5** _**2 S.C.C 631)**_ contended that Annexure A1 complaint is not maintainable because the first complaint, with almost identical allegations, was not entertained by the court and the accused therein was discharged. Therefore, the principle in _**Poonam Chand Jain's**_ case (supra) will be applicable to this case also. In the above case, the Supreme Court considered the maintainability of a second complaint after dismissal of the first complaint on merits. It was held that though there is no statutory bar for filing the second complaint on the same fact, but the same can be entertained only in exceptional circumstances. Reliance is also placed in _**Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (A.I.R 1962 S.C 876).**_ Learned counsel for the petitioners contended that the facts in this case would show that the position is still worse since this is a case wherein the accused **Crl.M.C Nos.672 & 2197 of 2012 6** in a complaint having identical allegations were discharged at the later stage of the proceedings, viz; under Section 245 Cr.P.C. Noting the contention of the complainant that the first complaint was in respect of offences relating to documents and the second one is for the alleged defamation, I am of the view that it may be improper for this Court in a jurisdiction under Section 482 Cr.P.C to resolve issue regarding the nature of a complaint on the basis of facts. Therefore, I am of the view that the issue can be considered by the court below at the time of framing charge. In other words, the accused are free to agitate all legal issues at the time of hearing on charge in Annexure A1 complaint. Learned counsel for the petitioners submitted that they may be allowed to contest the legal issues at the time of framing charge without making appearance before the court below. Reckoning all the **Crl.M.C Nos.672 & 2197 of 2012 7** submissions, following orders are passed : The prayer in the petition for quashment of Annexure A1 complaint is not allowed. However, it is made clear that the petitioners/accused are free to claim discharge before the court below. The court below shall not insist on the personal appearance of the accused for hearing on the question of charge. With these directions, Crl.M.C Nos.672 & 2197 of 2012 are disposed of. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk