Muthu v. The Administration Of Andaman And Nicobar Island And ORS

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE RAI CHATTOPADHYAY CRR/8/2023 Shri Muthu ... Petitioner

Versus

The Administration of Andaman and Nicobar Islands and others ... Opposite Party For the petitioner :

Mr. Mit Guha Roy (through virtual mode) Mr. Pardeshia Munda For the opposite party No. 1 :

Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi For the opposite party No. 2-5:

Mr. Salim Mohammed Heard on :

20th September, 2023 Judgment on :

20th September, 2023 RAI CHATTOPADHYAY, J.

1.

The petitioner is aggrieved with the order of the Judicial Magistrate at Campbell Bay dated the 6th January, 2023, passed in COMPLAINT/C.R. Case no. 02 of 2022. To challenge the same he has preferred the present application under Section 482 of the Code of Criminal Procedure, 1973.

2.

Learned Advocate appearing through video conference, for the petitioner, has pointed out to the fact that the impugned order

by dint of which the Magistrate has asked the petitioner to tender explanation/show cause as to why he shall not be prosecuted for an offence punishable under Section 209 of the Indian Penal Code, - is illegal and liable to be quashed. According to Mr. Mit Guha Roy, learned Advocate for the petitioner, the Trial Court has erred in considering that the case before it i.e. C.R. Case no. 02 of 2022 was a continuation of the petitioner's previous application before the Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973. Mr.

Mit Guha Roy has submitted that under the scheme of the relevant statute, the petitioner can espouse the two separate provisions under Section 156(3) and under Section 200 of the Code of Criminal Procedure, 1973 in two distinct proceedings, that too, only after disposal of the previous proceedings under Section 156(3) of the Code of Criminal Procedure, 1973 by the Magistrate. It has further been submitted that so far as the previous proceeding, brought by the present petitioner, before the Trial Court under Section 156(3) of the Code of Criminal Procedure, 1973 is concerned, the same has been closed by the Magistrate only unfairly, which defeats the principles of rule of law as well as the statutory provisions.

3.

The opposite party/State has however vehemently opposed to such contentions and prayer of the petitioner. Mr. Salim Mohammed, while representing the State has submitted that the

petitioner is not following the law when he has assailed the impugned order passed by the Magistrate in C.R. Case no. 02 of 2022 in the present case, whereas at the same time he challenges against the Court's decision in Misc. Petition Case no. 03 of 2022, vide the present revision.

4.

It has also been submitted by Mr. Salim Mohammed that the same allegation against the same person in a second complaint cannot be legally sustainable, as it is in the present case. He has pointed out that the petitioner's previous complaint under Section 156(3) of the Code of Criminal Procedure, 1973 has already been disposed of by the Trial Court, in Misc. Petition Case no. 03 of 2022. That the said verdict of the Court has never been challenged by the present petitioner. Under such circumstances according to Mr. Salim Mohammed the petitioner firstly, could not have maintained his subsequent complaint case being C.R. Case no. 02 of 2022, on the same set of allegations and against the same set of accused person. Thereafter, even if the petitioner has preferred to file such frivolous complaint case for the second time, the Magistrate would have ample power under the statutory frame work to prevent abuse of Court's process occurred due to filing of multiple complaints regarding same allegations and against the same person. Therefore, according to him, the Magistrate has

not done anything beyond scope of his power while delivering the impugned order in this case dated 6th January, 2023. 5.

In support of his submission, Mr. Salim Mohammed has relied on a Judgement of the Hon'ble Apex Court i.e. Krishna Lal Chawla & Ors vs. State of U.P. and another in Criminal Appeal No. 283 of 2021. In the said Judgement the Hon'ble Apex Court has deprecated misuse of Court's process by filing successive complaints by the same party against any particular accused person/persons. Mr. Salim Mohammed has urged that the present case under Section 482 of the Code of Criminal Procedure, 1973 is liable to be dismissed.

6.

The case has a chequered history. The relevant facts may be traced out from a date as early as 20th May, 2021. On that date the present petitioner was foisted with a case being Campbell Bay PS Case no. 19 of 2021 dated 20th May, 2021. Another F.I.R. was lodged against the petitioner and his father on 5th August, 2021 under Sections 457/354/323/506/509/34 of the Indian Penal Code, 1860. Specific grievance of the petitioner is that both the cases are only false and fabricated to victimize the petitioner. After lodging a case being Campbell Bay PS Case no. 19 of 2021, a big round of communication, of written complaints before various authorities in Police Department, took place at the instance of the petitioner here, seeking redress of grievances. Ultimately on 4th August, 2022 the petitioner lodged the Misc.

Petition Case no. 03 of 2022, before the jurisdictional Magistrate, to seek an order under Section 156(3) of the Code of Criminal Procedure, 1973. However, instead of allowing petitioner's prayer therein, the Magistrate on the basis of a confidential report of the police authorities, dropped the said Misc. Petition Case no. 03 of 2022. The petitioner thereafter had preferred the instant complaint case being C.R. Case no. 02 of 2022 in the Court of the Magistrate - 7.

The crux of the petitioner's allegations is that when he was taken into custody pursuant to the F.I.R. lodged on 5th August, 2021, he was subjected to custodial torture by the opposite party nos. 2 and 3. The petitioner's grievance is of custodial physical and mental torture meted out to him, by the said opposite parties, which he says have violated his fundamental, statutory as well as human rights. He says that such violation of his most vital rights as a human being and a citizen of the country, is required to be redressed and for such redressal he has moved the Court of Law.

8.

The petitioner has initially filed complaint before the jurisdictional Magistrate to seek an order under Section 156(3) of the Code of Criminal Procedure, 1973. The said proceeding was dropped and dismissed by the Magistrate on the findings of no material to proceed with the same.

9.

The petitioner on a subsequent date has again espoused his cause on the selfsame allegations against the self-same accused persons, by filing the present complaint case, under Section 200 of the Code of Criminal Procedure, 1973.

10.

The impugned order dated 6th January, 2023 has been passed by the Magistrate in C.R. Case no. 02 of 2022 where the Magistrate has found that the petitioner had come up with the same set of allegations as before. The Court found that the subsequent case by the petitioner is only a result of his malafide intentions of misusing Court's process in order to safeguard the consequences of he himself being a habitual offender. The Court found that the second complaint case was unwarranted in the eye of law. The Court also found that the same was an attempt to befool the Court.

11.

Ultimately, the Magistrate has directed that C.R. Case no. 02 of 2022 would stand dismissed in limini and also as follows "As a matter of such consequences, the present Complainant namely Muthu is directed to tender necessary explanation and/or to show cause from his end before this Court on the next date fixed as to why he shall not be charged with for having committed an offence as punishable U/S 209 of the Indian Penal Code, 1860 and shall not be dealt with appropriately in accordance with the prescribed law and procedure".

12.

Now the question arises as to whether C.R. Case no. 02 of 2022 would be maintainable pursuant to the fact that same set of allegations against the same set of accused persons by dint of a complaint by the present petitioner for an order under Section 156(3) of the Code of Criminal Procedure, 1973, has already been dismissed by the Magistrate on an earlier occasion. It is beneficial that a reference be made at this juncture to the judgment of the Hon'ble Apex Court reported in (2022) 5 SCC 378 (Samta Naidu and another -vs- State of Madhya Pradesh and another). The Hon'ble Apex Court while discussing the principles regarding maintainability of a second complaint has been pleased to hold therein that a second complaint is no way barred under the scheme of law.

The Court has gone to further elaborate that an order of dismissal under Section 203 of the Code of Criminal Procedure, 1973 is however, no bar to the entertainment of the second complaint on the same fact, but only in special and exceptional circumstances. The Court has further elaborated that it cannot be said to be in the interest of justice that after a decision has been given against the complainant, upon consideration of his case, he or any other person should be given another opportunity to have his complaint inquired into, also that, a second complain can lie only on fresh facts or even on the previous facts only if a special case is made up.

13.

In the said judgment the Hon'ble Apex Court was dealing with the case wherein after disposal of the previous complaint under Section 200, the complainant/appellant had filed a subsequent complaint case on the same set of facts and against the same accused person.

14.

The facts of the present case is different from the said case to some extent, in so far as, the present petitioner first tried his luck before the Magistrate by filing a complaint, to secure an order under Section 156(3) of the Code of Criminal Procedure, 1973. Having failed to secure any such order the present case i.e. C.R. Case no. 02 of 2022 is his subsequent attempt, no doubt, to persuade the Court to take cognizance of offence on the basis of the same set of facts as he endeavoured to allege previously also and against the same persons. 15.

The Code of Criminal Procedure through its various chapters, sections, provisions has provided for the procedural aspects of criminal justice system. Under Chapter XII comes the provision of Section 156 to promulgate the powers of the police officer to investigate in a cognizable case. Sub-Section (3) thereof is the enabling provisions for a Magistrate to order the police to investigate in a case.

16.

Chapter XV embodies provision regarding complaints made to the Magistrate. No doubt both the chapters XII and XV provide

for the statutory provisions to set the criminal justice system in motion by a citizen. The question is if it is an unfettered statutory right for a citizen, to simultaneously espouse all the provisions laid down under the statute to set the criminal justice system in motion, in connection with same allegations against the same accused persons or not.

17.

With reference to the two Supreme Court Judgments as mentioned above, one can say that the Courts have found no statutory embargo so far as taking recourse under the said varied provisions of law, on the basis of the same set of allegations. However, the law has been settled to the effect that an exceptional circumstance would only warrant filing of a second complaint, on the same set of allegations and not otherwise. The law is settled that otherwise that would promote misuse of the process of Court and that of law. 18.

Firstly, the Magistrate has overlooked this aspect of the matter that filing of a previous complaint under the other provision of law by the petitioner on the self-same set of allegations would not ipso facto be the cause, to turn down the subsequent complaint by the petitioner, preferred under the other provision of law. The Court is duty bound to look into the particular facts and circumstances of the case to arrive at a finding as to whether that is clinching and exceptionally warranting Court's cognizance. If the particular facts and circumstances are found

to be of ample gravity and exceptional in nature, there is no impediment for the petitioner to make endeavour to bring his grievances to the Court of Law.

19.

In this case we have to revert back to the facts once again to assess if such an exceptional circumstance exists. What is noticeable at the outset is that, the first confrontation of the petitioner, with police was on 20.05.2021. Having not been able to secure redress of his grievance by submitting various representations, the petitioner files Misc. Petition Case No. 03 of 2022, on 04.08.2022. On the very next day, i.e., on 05.08.2022 an F.I.R. was filed against him and his father and in connection with the same, he was arrested. Petitioner's specific allegation is of custodial violence against him. It is of ample gravity and seriousness to invite sincere attention of a Court particularly, in view of the circumstances leading to the alleged incident of custodial violence.

It is a fact relevant to be discussed here that in the previous case the petitioner has not been given access to the confidential report of police, which was the foundation for dismissal of his complaint by the Magistrate. In the considered opinion of this Court it was never a matter of ignorance and indifference of the Court that the complaint of the petitioner was against the police authorities itself.

an opportunity, to represent his case before the Court. Unfortunately, the Trial Court has misdirected itself in considering all these aspects, as discussed above. 20.

Therefore, this Court finds that the impugned order of the Magistrate dated 6th January, 2023 is not only in contravention of the statutory provisions but also hostile to the rule of law and fair play.

21.

No ingredients of offence under Section 209 of the Indian Penal Code, 1860 can be found on consideration of the entire background of the instant case. It is incumbent that the Trial Court should have atleast prima facie found and noted availability of those before thrashing on to the petitioner an allegation of offence punishable under Section 209 of the Indian Penal Code, 1860. It is necessary to mention that the facts of the present case do not postulate about any dishonest intentions of the present petitioner in filing the C.R. Case no. 02 of 2022, which could have justified Magistrate's decision to initiate against him a process for an offence under Section 209 of the Indian Penal Code, 1860.

22.

On the discussion as above, this Court finds that the order impugned in this matter i.e. dated 6th January, 2023, passed in C.R. case no. 02 of 2022 by the Judicial Magistrate, Campbell

Bay is illegal, a non-est in the eye of law and is thus liable to be set aside.

23.

The present case being CRR/08/2023 is allowed. Order dated 6th January, 2023 in C.R. Case No. 02 of 2022 before the Judicial Magistrate, Campbell Bay is hereby set aside. There would be a further direction upon the Magistrate to proceed in C.R. Case no. 02 of 2022, as expeditiously as possible and in accordance with law and dispose of the same within a period not more than three months from the date of communication of this order to the Magistrate.

24.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. (RAI CHATTOPADHYAY, J.)