29 Apr 2121

No person can be prosecuted for an identical complaint when the first one is still pending consideration - Bombay High Court

Case : Mr. Mahendra P. Dholakia v. The State of Maharashtra Criminal Writ Petition No. 5073 of 2015

Court : Bombay High Court

Bench : Justice S. S. Shinde and Justice Manish Pitale

Decided on : 29 Apr 2121

The Relevant Statutes

Section 193, 211, 406, 409, 420 of the Indian Penal Code, 1860

Section 156(3), 201, 202, 203 of the Code of Criminal Procedure, 1973

Brief Facts & Procedural History

1. Respondent No.2 stated that he and his siblings acquired an apartment in a Society where the Petitioner was working as the Secretary at the time. Even though one of Respondent No.2's relatives objected to the claim of the said Respondent and his brothers, the issue was amicably resolved, and Respondent No.2 and his brothers sought to transfer the Share Certificate related to the flat in question into their names. The core of Respondent No.2's claims against the Petitioner is that, while serving as the Society's Secretary, the Petitioner improperly applied pressure on Respondent No.2 and his brothers to get a duplicate Share Certificate for the flat after the original was misplaced. The Petitioner is accused of abusing his position as Secretary of the Society by pressuring the brothers of Respondent No.2 to sign a sale agreement with the Petitioner for a fraction of the market price.

Respondent No.2 claimed that the Petitioner lowered the amount of consideration and compelled the Respondent No.2's brothers to sign a memorandum of understanding to sell the apartment for a reduced consideration of Rs.65 lakhs, with the Petitioner paying a symbolic sum of Rs.5000/-. Due to a disagreement between the parties, the Petitioner filed a civil complaint about a decree of particular performance before this Court, which resulted in a status-quo decision. The suit in question is still being considered. In the meantime, the Petitioner and Respondent No.2 filed charges and counter-accusations against one other. The Petitioner had filed a private complaint with the Magistrate in the year 2010, alleging that Respondent No.2 and his brothers had defrauded him, and he sought registration of the offence under Section 420 of the Indian Penal Code, 1860. The complaint was dismissed, and the Revision Application that was submitted in response to it was also denied.

2. On the other hand, on 17/05/2013, Respondent No.2 filed a private complaint before the Magistrate against the Petitioner, stating that he had committed crimes under Sections 409 and 420 of the Indian Penal Code, 1860, among other things. Respondent No.2 detailed the events leading up to the filing of the complaint in respect to the Petitioner's claimed conduct and how he defrauded Respondent No.2 and his brothers by abusing his position as Secretary of the Society. This complaint was still being investigated. Instead of ordering an investigation under Section 156(3) of the Code of Criminal Procedure, 1973, the Magistrate deemed it appropriate to order an inquiry report under Section 202 of the Code of Criminal Procedure, 1973 after Respondent No.2 filed his sworn verification statement under Section 201 of the Code of Criminal Procedure, 1973 The proceedings in the abovementioned complaint were still ongoing when the Respondent No.2 filed a new complaint against the Petitioner before the Magistrate, alleging the same things and demanding an inquiry/investigation as well as action under Section 156(3) of the Code of Criminal Procedure, 1973 The Respondent No.2 did not disclose in this complaint that he had previously filed the aforementioned complaint against the Petitioner in the year 2013 on identical accusations and that the investigation into that complaint was being conducted by the Magistrate's ruling.

3. The Magistrate in 2015 recorded Respondent No.2's complaints and issued an order requiring an investigation under Section 156(3) of the Code of Criminal Procedure, 1860. The challenged FIR of 2015 was filed in response to the aforementioned order, leading to the filing of a charge-sheet against the Petitioner in 2016 for offences punishable under Sections 193, 211, 406, and 420 of the Indian Penal Code, 1860. 

4. The Petitioner filed the current petition in December 2015, seeking quashing of the FIR because Respondent No.2's second complaint, filed in 2015 during the pendency of an earlier complaint filed in 2013 on identical allegations, was not maintainable, that the registration of the FIR in pursuance of the second complaint was inappropriate, and that the Writ Petition deserved to be granted. 

The Issue of the Case

Whether the FIR dated 5 March 2015, as well as the charge sheet submitted in support of the said FIR, maintainable?

The Observations of the Court

1. The High Court of Judicature at Bombay observes that the accusations in the two complaints were nearly identical, the complaints' cores were the same.

2. Referring to the case Pramatha Nath Talukdar and anr. vs. Saroj Ranjan Sarkar AIR 1962 SC 876, the Hon'ble Supreme Court noted previous decisions on the subject and reaffirmed the view that a second complaint on similar accusations should only be brought in extraordinary circumstances. The examination for such extraordinary situations was expressly stated to fall into three groups i.e., when the earlier complaint was dismissed first because of a manifest error, second because there was a manifest miscarriage of justice in dismissing the complaint, and third because new facts had come to light about which the complainant was unaware or could not have brought forward with reasonable diligence in the previous proceeding.

3. Referring to the case T.T. Antony vs. the State of Kerala (2001) 6 Supreme Court Cases 181, when dealing with a situation where a second or subsequent FIR was filed on the same set of accusations, allowing second or consecutive FIRs and conducting a fresh inquiry would amount to an abuse of the legal process.

4. Referring to the case Krishna Lal Chawla and others vs. State of U.P. and another Criminal Appeal No.283 of 2021 (decided on 08/03/2021), the Hon'ble Supreme Court reaffirmed that the complainant cannot subject the accused to a double whammy of the police investigation and Magistrate inquiry.

5. Referring to the case Samta Naidu and another vs. State of Madhya Pradesh and another Criminal Appeal Nos.367-368 of 2020 (decided on 02/03/2020), the Hon'ble Supreme Court decided that if the earlier complaint was dismissed on the merits and in a manner recognised by law, the second complaint based on almost similar facts to those presented in the first complaint would not be viable. It was pointed out that previous decisions had said that if the essence of both complaints was the same, the second complaint should not be considered.

The Decision Held by the Court

1. The High Court of Judicature at Bombay held the FIR filed against the Petitioner on March 5, 2015, is invalidated. The charge sheet issued against the Petitioner in response to the aforementioned FIR is likewise quashed.

2. Needless to add, this ruling will not prevent Respondent No. 2 from appealing the Magistrate's order of 12 January 2021 dismissing the complaint of 2013 in line with the law. If such a challenge is brought or has already been raised by respondent No.2, the relevant Court will examine it on its own merits, without regard to this order. All merits questions in the complaint of respondent No. 2 dated 17 May 2013 remain unanswered. This includes the question of whether the dispute filed by respondent No. 2 is civil, as the Magistrate determined in the stated decision dated 12 January 2021. While considering the challenge to the said order dated 12 January 2021, the relevant Court shall apply its mind independently to all questions, including the said question.

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