Case Note & Summary
The petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenged the order of the Chief Judicial Magistrate, Ahmednagar, dated 04.09.2017, issuing process under Section 204 of the CrPC against the petitioners for offences under Sections 420 and 465 of the Indian Penal Code, 1860, on a private complaint filed by respondent No.2. The dispute arose from a trust of which respondent No.2 claimed to be president. The petitioners were alleged to have opened unauthorized bank accounts in the trust's name and misappropriated government grants. The matter had a prior history: respondent No.2 had filed an earlier complaint in 2007 (Misc. Criminal Application No. 821 of 2007) on identical allegations against some of the petitioners. The Magistrate directed police investigation under Section 156(3) CrPC. The police submitted a negative report on 01.10.2008, and since the complainant never objected, the complaint was dismissed on 29.04.2014. Meanwhile, on 26.04.2010, respondent No.2 filed the present private complaint against all petitioners without disclosing the existence or dismissal of the earlier complaint. The Chief Judicial Magistrate recorded the complainant's statement under Section 200 CrPC and by the impugned order directed process to be issued, finding substance in the allegations. The petitioners contended that the second complaint was an abuse of process, as it was based on identical facts, the earlier complaint had been dismissed, and no exceptional circumstances existed to entertain a second complaint. They relied on the decision in Poonam Chand Jain v. Fazru, AIR 2005 SC 38. Respondent No.2 did not file any affidavit-in-reply and argued that the Magistrate's order was reasoned and not perverse. The court noted the legal position that a second complaint after dismissal of the first under Section 203 CrPC is not maintainable unless exceptional circumstances are shown, such as the previous order being on an incomplete record or manifestly absurd. The facts in both complaints were identical. Respondent No.2 concealed the fact of the earlier complaint and its dismissal, and no exceptional circumstances were pleaded. The court held that filing the second complaint without disclosure was a sheer abuse of the process of law. The impugned order was obtained by hiding material facts. Consequently, the writ petition was allowed, the rule was made absolute, and the order issuing process was quashed.
Headnote
A) Criminal Procedure - Second Complaint - Maintainability - Code of Criminal Procedure, 1973, Sections 203, 204; Indian Penal Code, 1860, Sections 420, 465 - The complainant filed a second private complaint alleging cheating and forgery by trustees of a trust regarding opening bank accounts and misappropriation of funds. The first complaint on identical facts had been dismissed after police investigation report and no objection. The second complaint did not disclose the prior dismissal nor exceptional circumstances. The Court observed that a second complaint after dismissal under Section 203 CrPC is maintainable only in exceptional circumstances. The non-disclosure vitiated the proceedings. Held, the impugned order issuing process was an abuse of process and was quashed. (Paras 7-9)
Issue of Consideration
Whether a second complaint on the same facts is maintainable without disclosing the dismissal of the earlier complaint and without establishing exceptional circumstances?
Final Decision
The writ petition is allowed. Rule made absolute. The impugned order dated 04.09.2017 directing issuance of process under Section 204 CrPC is quashed and set aside.
Law Points
- Second complaint on same facts is maintainable only in exceptional circumstances (Poonam Chand Jain vs Fazru
- AIR 2005 SC 38)
- failure to disclose earlier complaint and its dismissal vitiates subsequent complaint
- abuse of process if material facts concealed
