Maintainability Of Second Protest Petition Depends On How First Complaint Against Negative Final Report Was Dismissed : Supreme Court

The Supreme Court yesterday held that there's no bar on the maintainability of the second complaint against the negative Final Report/Charge Sheet if the magistrate believes that the core of both complaints is different.

The Court in Samta Naidu & Anr. v. State of Madhya Pradesh & Anr. settled a position of law that if the earlier disposal of the complaint was on merits, the second complaint on “almost identical facts” that were raised in the first complaint would not be maintainable.

Taking a cue from Samta Naidu's case, the bench comprising Justice CT Ravikumar and Justice Rajesh Bindal clarified that there's no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances i.e., where the earlier dismissal order suffers from any infirmity.

Noting that the earlier complaint dismissal order didn't suffer from any infirmity and neither the dismissal order was challenged by the complainant, the Court observed that filing the second complaint on the same set of allegations mentioned in the first complaint would make the second complaint non-maintainable.

"The second complaint was filed thereafter on 20.07.2011 reiterating, rather, reproducing the complaint dated 11.11.2010 and further adding allegations, virtually made by way of the protest petition dated 05.05.2011 that the investigation pursuant to the original complaint was done perfunctorily. It is to be noted that the said allegation against the investigation was also rejected earlier as per order dated 06.06.2011 holding that the investigation did not suffer from any infirmity and further that it did not deserve further investigation. Now, a comparison of the first complaint dated 11.11.2010 and the second complaint dated 20.07.2011 shows that they contain the same set of allegations against the same accused as has been observed by the learned CJM in the order dated 12.07.2012.”, the court observed.

Further, the Court clarified that the non-dismissal of the earlier complaint under Section 203 of Cr.P.C. would not in every case entitle the complainant to file a second complaint merely because it was held in certain judgment that a second complaint would not be maintainable after the dismissal of the earlier complaint on merit. The Court said rather it would depend on the facts and circumstances of each case i.e., how the earlier complaint happened to be rejected/dismissed at the first instance.

“Merely because this Court in some of such decisions held that when a Magistrate conducted an inquiry under Section 202 Cr.P.C., and dismissed a complaint on merits, a second complaint on the same facts would not be maintainable unless there are very exceptional circumstances, it could not be understood that in all cases where a complaint to a Magistrate was not proceeded under Section 202 of the Cr.P.C., and dismissed not at the stage of Section 203, Cr.P.C., a second complaint or a second protest petition would be maintainable.”, the court observed.

"In short, the maintainability or otherwise of the second complaint would depend upon how the earlier complaint happened to be rejected/dismissed at the first instance.", the court said.

Background

In this case, the complainant had filed a protest petition against the negative final report submitted by the police to the magistrate. The protest petition was treated as a complaint under Section 2(d) of Cr.P.C. alleging that the investigation was not conducted properly and praying for taking cognizance of it.

However, the protest petition was dismissed by the magistrate holding that that the investigation did not suffer from any infirmity. However, instead of challenging the dismissal of the first complaint, a second complaint was filed by the complainant alleging the same grounds as urged in the first complaint before the magistrate. The second complaint was dismissed by the magistrate holding it to be non-maintainable under law.

However, the magistrate's decision to dismiss the second complaint was interfered with by the Sessions Court and High Court leading to the filing of the present appeal before the Supreme Court by the accused.

Decision

Setting aside the High Court's decision, the judgment authored by Justice CT Ravikumar observed that since the nature of allegations were same in both the complaints, and the second complaint didn't contain an exceptional circumstance warranting the courts interference, therefore the magistrate's order dismissing the second complaint was justified.

“In the case at hand, a perusal of protest petition dated 05.05.2011 and the second complaint dated 20.07.2011 would reveal that the second complaint filed after acceptance of final report filed pursuant to the investigation in the FIR registered based on the complaint dated 11.11.2010, that too after considering the narazi petition and hearing the complainant (the second respondent herein) the second complaint dated 20.07.2011 has been filed reproducing the first complaint dated 11.11.2010 and stating that the said complaint was not properly investigated and action should be taken on the second complaint dated 20.07.2011. In fact, the indubitable position is that the core of the original complaint dated 11.11.2010 and the second complaint dated 20.07.2011 is the same.”, the court observed.

“A scanning of the second complaint dated 20.07.2011 would reveal that none of the situations permissible in terms of the decisions referred supra exist in the case at hand to maintain the said complaint. When that be the position, the learned Sessions Judge as also the High Court were not justified in interfering with the order passed by the learned CJM dated 12.07.2012 holding the second complaint as not maintainable in law and issuing further direction.”, the court added.

Accordingly, the appeal was allowed.

Case Title: Subrata Choudhury @ Santosh Choudhury & Ors. Versus The State of Assam & Anr.

Citation : 2024 LiveLaw (SC) 856

Click here to read/download the judgment

Appearance:

For Petitioner(s) Mr. Pijush Kanti Roy, Sr. Adv. Mr. Pritthish Roy, Adv. Ms. Kakali Roy, Adv. Mr. Rajan K. Chourasia, AOR Mr. S. Nagamuthu, Sr. Adv. (A.C.) Mr. M.P. Parthiban, AOR

For Respondent(s) Mr. Nalin Kohli, Sr. A.A.G. Mr. Ankit Roy, AOR Ms. Nimisha Menon, Adv. Mr. Anshul Malik, Adv. Mr. Ayuushman Arora, Adv. Ms. Shruti Agarwal, Adv. Mr. Manish Goswami, Adv. Mr. Rongon Choudhury, Adv. Mr. Priyonkoo Gogoi, Adv. Mr. Rameshwar Prasad Goyal, AOR