B.R.K. AATHITHAN versus SUN GROUP & ANR.

Citation: [2022] 10 S.C.R. 87 · Decided: 29-11-2022 · Supreme Court of India · Bench: SURYA KANT · Disposal: Dismissed

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Judgment (excerpt)

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B.R.K. AATHITHAN
v.
SUN GROUP & ANR.
(Criminal Appeal Nos. 2080-2083/2022)
NOVEMBER 29, 2022
[SURYA KANT AND J. K. MAHESHWARI, JJ.]
Code of Criminal Procedure, 1973 – s.482 – Quashing of
criminal proceedings – Second complaint on identical set of facts –
Factum of FIR against appellant and his arrest was telecasted and
publicised by the respondents – Complaint u/ss.499 and 500, IPC
filed by appellant against respondents, dismissed by Judicial
Magistrate – Revision petition filed by the appellant before High
Court was dismissed as withdrawn – Appellant filed second
complaint under the same provisions on same facts only adding the
factum of Revision Petition and claiming that the second complaint
is being filed as per the order of the High Court – Magistrate
summoned the respondents, they filed petition u/s.482, Cr.PC which
was allowed – On appeal, held: Second complaint can be
maintainable in exceptional circumstances, depending upon the
manner in which the first complaint came to be dismissed – In the
present case, when the first complaint was filed u/ss.499, 500, IPC,
the Judicial Magistrate was well within his jurisdictional competence
to find out whether a prima facie case for summoning the accused
was made out or not, however, on having found that the allegations
made by appellant were in the teeth of fourth exception to s.499,
IPC, he declined to issue process to the respondents – Such dismissal
cannot be said to be without application of judicial mind, even if
erroneous in law – Appellant took a chance and challenged the
said order of dismissal before High Court in Revision – No sooner
the High Court expressed reluctance to entertain the Revision Petition
on merits, the appellant withdrew the same to work out his remedy
as available in law – Such order cannot be construed to have
permitted the appellant to file a second complaint on identical set
of facts – No error in the impugned judgment – Penal Code,1860 –
ss.499, 500.
[2022] 10 S.C.R. 87
87
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SUPREME COURT REPORTS
[2022] 10 S.C.R.
Dismissing the appeals, the Court
HELD: There can be no quarrel that in view of the decisions
of this Court in “Pramantha Nath Talukdar v. Saroj Ranjan
Sarkar” AIR 1962 SC 876 and “Shivshankar Singh Vs. State of
Bihar and Another” (2012) 1 SCC 130, the second complaint can
be maintainable in exceptional circumstances, depending upon
the manner in which the first complaint came to be dismissed. To
say it differently, if the first complaint was dismissed without
venturing into the merits of the case or on a technical ground
and/or by returning a reasoning which can be termed as perverse
or absurd in law, and/or when the essential foundation of second
complaint is based upon such set of facts which were either not
in existence at the time when the first complaint was filed or the
complainant could not have possibly lay his hands to such facts at
that time, an exception can be made to entertain the second
complaint. These principles, however, are not attracted to the
facts circumstances of the case in hand. When the first complaint
was filed primarily under Sections 499 and 500 IPC, the Judicial
Magistrate was well within his jurisdictional competence to find
out whether a prima facie case for summoning the accused was
made out or not. This essentially involved application of judicial
mind to reach a definite conclusion as to whether or not the
accused be summoned. In the instant case, the Judicial
Magistrate having found that the allegations made by the appellant
were in the teeth of fourth exception to Section 499 IPC, he
declined to issue process to the respondents. Such dismissal
cannot be said to be without application of judicial mind. The
application of judicial mind and arriving at an erroneous conclusion
are two distinct things. The Court even after due application of
mind may reach to an erroneous conclusion and such an order is
always justiciable before a superior Court. Even if the said Order
is set aside, it does not mean that the trial court did not apply its
mind. The appellant took a chance and challenged the order of
dismissal of his 1st complaint before the High Court in a Criminal
Revision Petition. It is apparent from the contents of the Order
that no sooner the High Court expressed its reluctance to
entertain the Revision Petition on merits, the appellant withdrew
the same to work out his remedy as may be available in law. This
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Order cannot be construed to ha

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