Dismissal of the First Complaint Not To Be a Bar for Filing Of a Second Complaint on the Same Grounds in Exceptional Cases: Jammu and Kashmir High Court

Excerpt

The Petitioners have filed the instant petition to invoke the inherent jurisdiction for quashing proceedings initiated against them upon a complaint titled “Manzoor Ahmad Bhat v. Tahira and others” along with impugned order dated 13.11.2019. The Petitioners urged that since the Respondent’s initial complaint was dismissed, the cognizance of the second complaint filed thereof was illegal. The Court, however, dismissed the petition and held that since the order of dismissal of the first complaint had not been passed with due diligence and proper investigation, the second complaint is hence, not barred by the dismissal of such first petition.

Background 

Petitioners 2 to 7 were brothers and nephews of Petitioner No. 1 and were falsely implicated in a complaint filed by the Respondent, the husband of Petitioner No. 1. He had sold his half of the family property and a house at Bemina belonging to Petitioner No. 1 and her two children. Therefore, Petitioner No. 1 filed a civil suit before the Court of Additional Munsiff, Srinagar, that passed an interim order directing maintenance of status quo concerning the suit property. To counter the suit mentioned above filed by Petitioner No.1 and her children, the Respondent herein filed a complaint on 14.8.2018 alleging therein commission of offences under Section 120B, 506, 403, 447, 448, 147, 323, and 325 RPC before the Court of Chief Judicial Magistrate, Srinagar, who referred the same for investigation and dismissed it upon receipt of a report of investigation from the police. After the dismissal of the said complaint, the Respondent filed another complaint on the same set of facts before the Court of Munsiff Judicial Magistrate Sub Registrar, Srinagar, without disclosing the filing and dismissal of the earlier complaint. The Court took cognizance upon the said second complaint and issued a process against the Petitioners. The Petitioners herein applied to the Court under Section 203 Cr. P. C. for dismissal of the complaint on the ground of res judicata while invoking Section 403 Cr. P. C. read with Section 26 General Clauses Act and Section 70 of IPC. The Court dismissed this application by passing the impugned order. The same order was challenged in the instant petition. 

Petitioners’ Arguments

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The Petitioners argued that the Court passed the impugned order against the facts and circumstances of the case and that the subsequent complaint filed by the Respondent herein and proceedings initiated thereupon were grave misuses of the judicial process, including misuse of the legal forum by the Complainant, Respondent herein. Further, it was urged that the Court below, while passing the impugned order, failed to appreciate the dismissal of the similar initial complaint filed by the Respondent. It was also urged that taking the cognizance of a subsequent complaint by the Court was illegal. Moreover, it was contended that the criminal proceedings initiated by the Respondent against the Petitioner by way of a complaint in respect thereof were not maintainable owing to a civil suit already pertaining to the title of a house and shop. It was urged that the Respondent has filed the subsequent complaint against Petitioner No. 1 and his brothers-in-law, who have no concern with the property of the Respondent, as a pressure tactic and measure of misuse of the judicial process.

Further, the Complainant did not disclose material facts before the Court and had he done so; the Court below would not have issued the process against the Petitioners. Furthermore, the Petitioners said that the trial court had proceeded in a very ordinary manner without looking into the gravity of the case, and the Court below had closed its eyes while passing the impugned order. Mr S. H. Thakur, the learned counsel appearing for the Petitioner, reiterated the contentions raised by the Petitioners and the grounds urged in the petition while advancing his arguments before the Court.

Respondent’s Arguments

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Nobody appeared for the respondents despite the service. 

Court’s Observation

The Court heard the learned counsel for the Petitioners and perused the record summoned under the order of this Court dated 16.12.2020. It observed that the points that need to be considered in the instant petition would be whether the Respondent’s subsequent complaint herein was maintainable or not and secondly, whether the impugned order has been passed validly and legally in the facts and circumstances of the case. Before averting to the points mentioned above, the Court went through the case’s background, and the CJM Srinagar passed the order. The Court further referred to the decision of the Apex Court in the case titled Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 and observed that a fresh complaint could be entertained where there is a manifest error or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming. 

Court’s Decision

Keeping in view the proposition above and the facts and circumstances of the case in general, the Court of CJM, Srinagar,  passed the order of dismissal of the first complaint. In particular, the Court concluded that the order of dismissal of the first complaint had been passed on an incomplete record and by misappreciation of the complaint. Further, the inquiry conducted by the police and report submitted thereon, which had formed the basis for dismissal of the first complaint by the CJM Srinagar, was also found to be inappropriate. The dismissal of the first complaint was found to be absurd. It was held that the dismissal of the first complaint was not a bar on the facts and circumstances of the case for filing of a second complaint even on the same set of facts notwithstanding the non-mentioning of the filing of the first complaint and its dismissal thereof in the second complaint by the Respondent herein. Therefore, the petition filed by the Petitioner was dismissed.

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