Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Subrata Choudhury @ Santosh Choudhury & Ors. v. The State of Assam & Anr. has held that a second complaint is maintainable when the final report is found negative but only when the second complaint has some core difference.

What was the Background of Subrata Choudhury @ Santosh Choudhury & Ors. v. The State of Assam & Anr. Case?

• In the present case, the 2^nd respondent filed a complaint before the Chief Judicial Magistrate and the same was forwarded for investigation under Section 156(3) of Code of criminal Procedure, 1973(CrPC).
• A subsequent First Information Report (FIR) was filed against the appellants under Section 406, 420 read with Section 34 of the Indian Penal Code, 1860(IPC).
• After investigation a final report was filed under Section 173 of CrPC before the CJM.
• The report produced was a negative report.
• Aggrieved by the report a written objection/Narazi petition was filed by the complainant for not conducting the investigation properly.
• The CJM accepted the final report and confirmed the negative report.
• A second complaint was filed by the complainant with the same set of allegations against the appellants and the others who were shown as accused in the first complaint, before the learned CJM alleging commission of offence under the very Sections viz., 406, 420 and 34 IPC.
• CJM directed for investigation and for deposition of the complainant and the statements of the witnesses.
• Aggrieved by the decision of the CJM the appellant(accused) preferred a Criminal Revision Petition before the High Court Guwahati.
• The High Court set aside the order of the learned CJM and directed the appellants herein to file an appropriate application raising the question of maintainability of the second complaint.
• CJM considered the application filed by the appellants raising the question of maintainability of the second complaint and dismissed the second complaint holding it not maintainable in law.
• Aggrieved the second respondent complainant filed Criminal Revision Petition.
• The Sessions Judge allowed the said Criminal Revision Petition and set aside the order of the CJM and remanded the case for reconsideration of the matter afresh for the purpose of finding whether any case for taking cognizance of the alleged offences and issuance of process have been made out or not.
• Aggrieved by the said order the appellants preferred Criminal Revision which was dismissed by the High Court.
• Aggrieved by the same the present appeal has been filed before the Supreme Court.

What were the Court’s Observations?

• The Supreme Court observed that:
  • Filing a second complaint after the first complaint was rejected is maintainable but only if the core issues in both complaints are different.
  • Exceptions and Clarifications:
    • A second complaint on the same facts might be allowed, but only in exceptional cases.
    • One such exception is when the first dismissal order had some legal or procedural error
    • Just because the first complaint wasn't dismissed under Section 203 of CrPC doesn't automatically give the right to file a second complaint.
  • Whether a Second Complaint is allowed depends on:
    • How the first complaint was dismissed.
    • The specific circumstances of the case.
    • Whether the first dismissal order was challenged.
    • Whether there are any new facts or circumstances.
  • To file a second complaint with the same allegations as the first one, and there was no infirmity with how the first complaint was dismissed, the second complaint won't be accepted.
• The Supreme Court held that the present complaint does not fall within the ambit of special circumstances and therefore filing of second appeal on the same grounds was not maintainable as the first complaint and there was no infirmity in the orders passed under the first complaint.
• Based on the above observations the Supreme Court set aside the order of the High Court.

What is a Protest Petition?

About:

• A protest petition is a representation made by the victim or an informant to the court during the police investigation or after its completion to object against the police’s closure report in a given case.
• It is not defined under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) but is a mechanism that evolved through judicial pronouncements over the years.

Section 189 of BNSS:

• Section 189 of BNSS provides for filing of a closure report by the police officer investigating the case if he is of the opinion that there does not exist sufficient evidence against the accused in the case in order for the magistrate to take cognizance in the case.
• Filing of a closure report virtually ends the trial however the complainant or an aggrieved person can move a protest petition against such closure report before the Court.

Filing of the Protest Petition:

• When any aggrieved person files a complaint before Magistrate under section 175(3) of the BNSS, the Magistrate after being satisfied with the complaint petition gives instruction to the police for investigation.
• After making investigation, the police officer submits his investigation report to the magistrate under 193(3) of the BNSS.
• The aggrieved or the complainant in the event of not satisfied with the police, files a protest petition begore the concerned Magistrate stating his/her dissatisfaction and pray for further investigation under court supervision.
• If the protest petition is accepted, then the magistrate takes cognizance of the matter and issues notice to the accused person.
• Discretion of the Magistrate:
  • The Magistrate is not bound to accept the final report submitted by the Police Officer.
  • The Magistrate can disagree with that repot and can take the cognizance simple based upon the documents that are submitted or annexed with the police report.

Case Laws:

• Rajesh v. State of Haryana (2019):
  • The Supreme Court had observed that courts must exercise their power under the CrPc to summon an accused, even though his name is not there in the charge sheet, sparingly. It should not be exercised because a judge is of the opinion that some other may also be guilty, but only where strong and cogent evidence occurs against a person from the evidence manner.
• Vishnu Kumar Tiwari v. State of Uttar Pradesh (2019):
  • The Supreme Court observed that not all protest petitions should be treated as a complaint petition. The court said a magistrate could not be compelled to take cognizance by treating the protest petition as a complaint, if he/she is convinced on the basis of the consideration of a final report and statements of witnesses recorded by the police that no prima facie case is made out.
• Samta Naidu & Anr. v. State of Madhya Pradesh & Anr. (2020):
  • The Supreme Court held that a second complaint filed on same facts as the first one shall not be maintainable.