5. The factum of registration of the FIR and arrest of the appellant in that case was telecasted and published in the TV and print media by the respondents.
6. The appellant having felt that the action of the respondents amounted to criminal defamation, filed a Criminal Complaint under Sections 499 and 500 IPC etc. which was, however, dismissed by the learned Judicial Magistrate on 28.04.2015 by passing the following Order:
“Heard perused, it is alleged by the Petitioner that the Respondents broadcasted and published defamation against the Petitioner. On perusal of the available material which is revealed that the content of the Petitioner falls in the Fourth exception of U/s 499 of IPC. Hence, there is no prima facie case made out against the Respondents for the alleged offences. Hence, this Petition stands is dismissed.
8. Thereafter, the appellant filed second Criminal complaint, i.e, S.T.C 45/2017 in the Court of Judicial Magistrate at Tiruchendur which too was under the same provisions as was his first complaint.
9. It is hardly in dispute that the second complaint was replica of the first complaint with each and every averments being identical except that in the second complaint, the appellant added one more paragraph No. 11, incorporating the factum of filing Criminal Revision before the High Court; rejection thereof and further claiming that he had filed a second complaint “as per the order of the Hon’ble Madurai Bench of the Madras High Court”.
10. In the second complaint, learned Judicial Magistrate summoned the respondents which prompted them to file a Petition under Section 482 of the Cr.P.C. before the High Court, seeking quashing of the said complaint primarily on the ground that the second complaint on the same set of facts and circumstances was not maintainable. Vide impugned Judgment and Order dated 30.08.2019, the High Court allowed the petition filed by the respondents and consequently, the second complaint filed by the appellant has been quashed.
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14. There can be no quarrel that in view of the decisions of this Court in “Pramantha Nath Talukdar v. Saroj Ranjan Sarkar” AIR 1962 Supreme Court 876” and “Shivshankar Singh vs. State of Bihar and Another” (2012) 1 SCC 130, the second complaint can be maintainable in exceptional circumstances, depending upon the manner in which the first complaint came to be dismissed. To say it differently, if the first complaint was dismissed without venturing into the merits of the case or on a technical ground and/or by returning a reasoning which can be termed as perverse or absurd in law, and/or when the essential foundation of second complaint is based upon such set of facts which were either not in existence at the time when the first complaint was filed or the complainant could not have possibly lay his hands to such facts at that time, an exception can be made to entertain the second complaint.
15. These principles, however, in our considered view, are not attracted to the facts circumstances of the case in hand. When the first complaint was filed primarily under Sections 499 and 500 IPC, the Judicial Magistrate was well within his jurisdictional competence to find out whether a prima facie case for summoning the accused was made out or not.
16. This essentially involved application of judicial mind to reach a definite conclusion as to whether or not the accused be summoned. In the instant case, the learned Judicial Magistrate having found that the allegations made by the appellant were in the teeth of fourth exception to Section 499 IPC, he declined to issue process to the respondents. Such dismissal cannot be said to be without application of judicial mind. The application of judicial mind and arriving at an erroneous conclusion are two distinct things. The Court even after due application of mind may reach to an erroneous conclusion and such an order is always justiciable before a superior Court. Even if the said Order is set aside, it does not mean that the trial court did not apply its mind.
18. Learned counsel appearing for the appellant then relies upon the Judgment of this Court in “Subramanian Swamy Vs. Union of India” (2016) 7 SCC 221, to urge that the onus was on the respondents to establish that the appellant’s first complaint was barred by fourth exception to Section 499 of IPC.
19. It appears to us that such a contention was available to the appellant before the High Court in Criminal Revision filed by him challenging the order of dismissal of his first complaint. The appellant instead of withdrawing the Criminal Revision, ought to have invited an order on merits including on the contention sought to be raised now. As stated earlier, even if the order of learned Judicial Magistrate while dismissing the first complaint was erroneous in law, it does not amount to nonapplication of mind by
the trial court.
PARTY: B.R.K.AATHITHAN vs. SUN GROUP & ANR – Crl.Apl Nos: 2080_2083 of 2022 – 29th November 2022.
https://main.sci.gov.in/supremecourt/2020/618/618_2020_11_48_40173_Judgement_29-Nov-2022.pdf
