Andhra Pradesh High Court - Amravati
Gollaprolu Subrahmanyam vs The State Of A.P. 3 Others on 25 November, 2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL REVISION CASE No.675 OF 2009
Between:
Gollaprolu Subrahmanyam,
S/o.Krishnaiah, Aged about 28 years,
Student, R/o.Padugupadu Village,
Kovur Mandal,
SPSR Nellore District. .... Petitioner/
De-facto complainant
Versus
1. The State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P.
2. Gollaprolu Ramesh, S/o.Yanadaiah,
Aged about 29 years.
3. Gollaprolu Seethamma, W/o.Yanadaiah,
Aged about 53 years.
4. Gollaprolu Kamakshamma,
W/o.Venkata Ramanaiah,
Aged about 25 years.
(R-2 to R-4 are Residents of Pedda
Padugupadu Village, Kovur Mandal,
SPSR Nellore District). .... Respondents
DATE OF ORDER PRONOUNCED : 25.11.2022
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Order? Yes/No
2. Whether the copy of Order may be
2
AVRB,J
Crl.R.C. No.675/2009
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the order ? Yes/No
______________________________
A.V.RAVINDRA BABU, J
3
AVRB,J
Crl.R.C. No.675/2009
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL REVISION CASE No.675 OF 2009
% 25.11.2022
# Between:
Gollaprolu Subrahmanyam,
S/o.Krishnaiah, Aged about 28 years,
Student, R/o.Padugupadu Village,
Kovur Mandal,
SPSR Nellore District. .... Petitioner/
De-facto complainant
Versus
1. The State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P.
2. Gollaprolu Ramesh, S/o.Yanadaiah,
Aged about 29 years.
3. Gollaprolu Seethamma, W/o.Yanadaiah,
Aged about 53 years.
4. Gollaprolu Kamakshamma,
W/o.Venkata Ramanaiah,
Aged about 25 years.
(R-2 to R-4 are Residents of Pedda
Padugupadu Village, Kovur Mandal,
SPSR Nellore District). .... Respondents
! Counsel for the Petitioner : Sri J. Pradeep Kiran
^ Counsel for the Respondent No.1 : Public Prosecutor
^ Counsel for the Respondent
Nos.2 to 5 : Sri V.R.K. Reddy
4
AVRB,J
Crl.R.C. No.675/2009
< Gist:
> Head Note:
? Cases referred:
(2008) 9 SCC 140
This Court made the following:
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Crl.R.C. No.675/2009
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.675 OF 2009
ORDER:
This Criminal Revision Case came to be filed, under Sections 397 and 401 R/w. Section 482 of the Code of Criminal Procedure, 1972 (for short, „the Cr.P.C.) by the petitioner herein, who was the de-facto complainant, challenging the order, dated 24.04.2007, passed in Criminal Revision Petition No.32 of 2007 on the file of the Court of III Additional District and Sessions Judge (Fast Track Court), Nellore (for short, „the learned Additional Sessions Judge‟), SPSR Nellore District, with a prayer to set-aside the same.
2. The first respondent herein is the State of Andhra Pradesh, represented by the learned Public Prosecutor. Respondent Nos.2 to 4 herein are the revision petitioners in Criminal Revision Petition No.32 of 2007 before the learned Additional Sessions Judge. They were brought on record as Accused Nos.4 to 6 in C.C. No.271 of 2003, as per the orders in Criminal Miscellaneous Petition No.447 of 2006 in C.C. No.271 of 2003, filed by the prosecution before the learned Additional Judicial Magistrate of First Class, Kovur, SPSR Nellore District (for short, „the learned Magistrate‟). 6
AVRB,J Crl.R.C. No.675/2009
3. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court, for the sake of convenience.
4. The facts leading to filing of this Criminal Revision Case by the petitioner/de-facto complainant can be summarized as follows:
Originally, basing on the report lodged by the present de-
facto complainant, Crime No.13 of 2003 came to be registered by the Kovur Police Station for the offences under Sections 448 and 324 R/w. 34 of the Indian Penal Code, 1860 (for short, „the IPC‟).
In the above FIR, as many as 6 persons were shown as accused i.e., original accused Nos.1 to 3 in C.C. No.271 of 2003 and A-4 to A-6, who are brought on record under Section 319 Cr.P.C. by the learned Magistrate, as per the orders in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003, dated 30.03.2007. When the names of these persons were shown as accused in Crime No.13 of 2003, the Police investigated the case and laid charge sheet as against A-1 to A-3 i.e., Gollaprolu Yanadaiah, Gollaprolu Venkata Ramanaiah and Gollaprolu Rajesh alone deleting the names of the respondent Nos.2 to 4 herein on the ground that no case was made out against them and, on filing the charge sheet, the learned Magistrate took cognizance of the case against A-1 to A-3 alone 7 AVRB,J Crl.R.C. No.675/2009 and issued process. When the case in C.C. No.271 of 2003 was posted for trial, the de-facto complainant was examined as PW.1 before the trial Court, who deposed the names of A-1 to A-3. He also deposed about the names of Gollaprolu Ramesh, Gollaprolu Seethamma and Gollaprolu Kamakshamma that they trespassed into the house and committed the offence. So, when PW.1 was examined before the trial Court, he disclosed the names of respondent Nos.2 to 4 herein by adhering to the contents in the original report lodged by him. Then the prosecution filed an application under Section 319 Cr.P.C. with a prayer to issue summons to A-4 to A-6. Thereupon, the learned Magistrate, on hearing the prosecution as well as A-1 to A-3, who got filed their counter, but without ordering notice to the respondent Nos.2 to 4 herein i.e., A-4 to A-6 allowed the said Application and issued process against them.
5. Aggrieved by the same, A-4 to A-6, who were brought on record, filed the aforesaid Criminal Revision Petition before the learned Additional Sessions Judge challenging the impugned order therein on various grounds.
6. The contentions canvassed by the respondent Nos.2 to 4 herein in Criminal Revision Petition No.32 of 2007 before the 8 AVRB,J Crl.R.C. No.675/2009 learned Additional Sessions Judge are that no notice was ordered against them in the Petition filed by the prosecution in C.C. No.271 of 2003 and as such in their absence the order was decided, which is nothing but violation of the principles of natural justice. They also contended that the petition under Section 319 Cr.P.C. was barred by limitation.
7. The learned Additional Sessions Judge, on hearing both sides and considering the material on record, decided the Criminal Revision Petition No.32 of 2007 and allowed the same by setting- aside the orders of the learned Magistrate in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003, dated 30.03.2007, thereby dismissing the Crl.M.P. No.447 of 2006 filed before the trial Court. The observation of the learned Additional Sessions Judge, while allowing the Crl.R.P. No.32 of 2007 on 24.04.2007, is mainly looking into the provisions of Section 468 Cr.P.C. The sum and substance of the findings of the learned Additional Sessions Judge are that the learned Magistrate has erred in ignoring the mandatory provisions of the Cr.P.C. i.e., 468 Cr.P.C. which bars taking cognizance after the limitation period is over etc., Aggrieved by the said order, the de-facto complainant filed the present Criminal Revision Case challenging the orders in Criminal 9 AVRB,J Crl.R.C. No.675/2009 Revision Petition No.32 of 2007, dated 24.04.2007, before the learned Additional Sessions Judge.
8. Now, in deciding this Criminal Revision Case, the point that arises for consideration is as to whether the order, dated 24.04.2007, in Criminal Revision Petition No.32 of 2007, passed by the learned Additional Sessions Judge suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the said order?
9. Sri N. Harinath, learned counsel, representing Sri J. Pradeep Kiran, learned counsel for the petitioner, would contend that in the report lodged by the present revision petitioner in the capacity of the de-facto complainant, the names of respondent Nos.2 to 4 herein were there and he reiterated his version during the course of investigation and, for obvious reasons best known to the Police, they deleted the names of respondent Nos.2 to 4 herein and laid charge sheet only against A-1 to A-3 alone. The petitioner was examined as PW.1 before the trial Court, who adhered to the contents of the report lodged by him by revealing the names of A-4 to A-6 also in the commission of the offence thereby bringing the role of A-4 to A-6. Hence, the prosecution has rightly filed Crl.M.P. No.447 of 2006 in C.C. 10 AVRB,J Crl.R.C. No.675/2009 No.271 of 2003 with a prayer to issue summons to A-4 to A-6 and the learned Magistrate, after inviting a counter from A-1 to A-3, rightly summoned A-4 to A-6 and A-4 to A-6 filed Crl.R.P. No.32 of 2007 before the learned Additional Sessions Judge and the learned Additional Sessions Judge erroneously applied the limitation under Section 468 Cr.P.C. and allowed the same. He would contend that already cognizance was taken by the learned Magistrate for the offence alleged in exercise of power under Section 319 Cr.P.C. which is only ancillary looking into the evidence on record and in view of Section 319 Cr.P.C he would contend that for an application under Section 319 Cr.P.C there is no question of applying law of limitation and no such period is prescribed to an application under Section 319 Cr.P.C. Learned counsel would rely upon a decision of the Hon‟ble Apex Court in Bholu Ram v. State of Punjab and another1 in this regard. When the learned Magistrate has exercised his discretion to summon A-4 to A-6 under Section 319 Cr.P.C., the learned Additional Sessions Judge erred in setting-aside the order applying Section 468 Cr.P.C. which cannot be made applicable to Section 319 Cr.P.C. as such he prays to set-aside the order of the learned Additional Sessions Judge.
1 (2008) 9 SCC 140 11 AVRB,J Crl.R.C. No.675/2009
10. Sri V.Roopesh Kumar Reddy, learned counsel appearing for the respondent Nos.2 to 4 herein, would fairly admit that to exercise the power under Section 319 Cr.P.C. one need not look into the limitation angle under Section 468 Cr.P.C. as already cognizance was taken but he would contend that the said application was decided by the learned Magistrate without affording an opportunity to the respondent Nos.2 to 4 herein to put forth their objections and the learned Additional Sessions Judge instead of setting-aside the order on the ground of violation of principles of natural justice looked into the limitation aspect. So, he would further contend that if this Court is going to set- aside the order of the learned Additional Sessions Judge, it can be by way of remand directing the learned Magistrate to decide the Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003, afresh, by affording an opportunity of hearing to the respondent Nos.2 to 4 herein.
11. In the light of the above, admitted facts are that the revision petitioner herein lodged a report before the concerned Police revealing the names of as many as six persons as the offenders for the alleged offence. There is no dispute that the de-facto complainant, during the course of investigation, adhered to the 12 AVRB,J Crl.R.C. No.675/2009 contents of the report lodged. However, it is a fact that the Investigating Officer looking into the outcome of the investigation deleted the names of A-4 to A-6 and filed charge sheet against A-1 to A-3 alone. There is also no dispute that the de-facto complainant was examined before the trial Court as PW.1, who revealed the names of A-4 to A-6 and in such a scenario the learned Assistant Public Prosecutor filed an application under Section 319 Cr.P.C. with a prayer to issue summons to respondent Nos.2 to 4 herein, who are A-4 to A-6. There is also no dispute that notice of the said application was alone served on the learned counsel for A-1 to A-3, who filed a counter opposing the prayer, and the said application was decided without giving notice to the proposed A-4 to A-6. So, aggrieved by the same, A-4 to A-6 filed Criminal Revision Petition No.32 of 2007 before the learned Additional Sessions Judge and the learned Additional Sessions Judge allowed the same setting-aside the orders of the learned Magistrate by looking into the provisions under Section 468 Cr.P.C. It is that order which is under challenge in this Criminal Revision Case.
12. The facts in the decision of the Hon‟ble Supreme Court in Bholu Ram (supra), cited by learned counsel for the petitioner/de- 13
AVRB,J Crl.R.C. No.675/2009 facto complainant are that the appellant before the Hon‟ble Supreme Court was shown as accused on the allegations of Sections 409, 420, 467, 468 and 471 IPC. During the course of trial, certain witnesses deposed against second respondent alleging that it was the second respondent who had withdrawn the amount and the signatures purported to have been forged by the appellant were in fact tallied with the specimen signatures of the second respondent. So, in that view of the matter, the appellant who was the accused in the said case filed Applications on 05.02.1994 and on 06.01.1996 under Section 319 Cr.P.C with a prayer to add the second respondent as accused and to summon him. The learned Magistrate allowed the said Applications of the appellant and issued summons to the second respondent by joining him as accused. Though the said order was dated 22.01.1996, the second respondent did not challenge it. But when the State challenged the said order by way of Revision in the Court of learned Additional Sessions Judge, it was dismissed on 06.05.1996. Later, after a gap of more than eight months, the second respondent filed an Application on 25.09.1996 to recall the order, dated 22.01.1996, and he also filed another petition that he could not be prosecuted in the absence of sanction as required under Section 197 Cr.P.C. The learned Magistrate dismissed the 14 AVRB,J Crl.R.C. No.675/2009 said application on 12.03.1997 as not maintainable in view of the dismissal of the Revision filed by the State before the learned Additional Sessions Judge. Then the second respondent filed two revision petitions before the learned Additional Sessions Judge, who allowed the applications on 05.03.1998 and set-aside the order dated 22.01.1996 of the learned Magistrate. The appellant challenged those two orders before the High Court but failed in that regard. Thereupon, he filed an Appeal before the Hon‟ble Supreme Court. Before the Hon‟ble Supreme Court, the second respondent raised various contentions. One of the contentions raised before the Hon‟ble Supreme Court was that the power under Section 319 Cr.P.C. cannot be exercised belatedly by the Court and that such order can be made only on the application by the Public Prosecutor or by some other person other than the accused. He canvassed a contention that such an application is filed by an applicant who is facing the trial.
13. The Hon‟ble Supreme Court did not accept the said contention. The Hon‟ble Supreme Court dealing with Section 319 Cr.P.C. held that it nowhere states that such an application can be filed by a person other than the accused. The Hon‟ble Supreme 15 AVRB,J Crl.R.C. No.675/2009 Court also held that it does not prescribe any time limit within which such application should be filed.
14. It is basing on this observation of the Hon‟ble Supreme Court, learned counsel for the petitioner herein would contend that no prescribed period of limitation is there to file an application under Section 319 Cr.P.C. and such an application can be filed at any stage.
15. Admittedly, in the light of the above decision of the Hon‟ble Supreme Court and having looked into Section 319 Cr.P.C., there is no prescribed period in which such an application can be filed.
16. This Court has further looked into the issue by looking into the provisions of Section 319 Cr.P.C. as well as Section 468 Cr.P.C. which were referred to by the learned Additional Sessions Judge in the impugned order in Criminal Revision Petition No.32 of 2007. Apart from the observations of the Hon‟ble Supreme Court in Bholu Ram (supra) that no limitation is there to file the petitioner under Section 319 Cr.P.C, even a close perusal of Section 319 Cr.P.C. as well as the provisions under Section 468 Cr.P.C. would present a categorical situation that while deciding the application under Section 319 Cr.P.C. the provisions governing 16 AVRB,J Crl.R.C. No.675/2009 the limitation relating to cognizance under Section 468 Cr.P.C. cannot be made applicable.
17. At this juncture, it is relevant to extract Section 468 Cr.P.C. which reads as follows:
"468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."
18. At this juncture, it is relevant to extract Section 319 Cr.P.C. which reads as follows:
"319. Power to proceed against other persons appearing to be guilty of offence.17
AVRB,J Crl.R.C. No.675/2009 (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
19. A close perusal of Section 319 Cr.P.C. reveals that the basis to the Court to proceed against other person appearing to be guilty of the offence is the evidence during the course of any inquiry or trial of an offence. So, if the evidence in the inquiry or the trial would reveal the role of any person not being the accused the Court may proceed against such person for the offence which he 18 AVRB,J Crl.R.C. No.675/2009 appears to have committed. Literally, Section 319 (1) Cr.P.C. does not enjoins anywhere of taking cognizance afresh. On the other hand, if the evidence on record reveals the role of another person not being the accused in the commission of offence, the Court may proceed against such a person for the offence which he appears to have committed. On the other hand, Section 468 Cr.P.C. specifies certain contingencies where taking cognizance of offence is barred.
20. So, the period of limitation shall be six months if the offence is punishable with fine; one year, if the offence is punishable with imprisonment for a term of not exceeding one year; three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
21. Coming to the offences alleged against the accused in C.C. No.271 of 2003, they are 448 and 324 R/w.34 IPC which are not punishable with more than three years.
22. When the Police laid a charge sheet alleging the offences under Sections 448 and 324 R/w.34 IPC or for that matter any offence punishable with less than three years, one cannot expect that the trial process would be completed well within three years from the date of offence. If the reasoning of the learned Additional 19 AVRB,J Crl.R.C. No.675/2009 Sessions Judge that while deciding the application under Section 319 Cr.P.C., limitation aspect has to be considered is accepted, imagine a situation where the trial is commenced after three years from the date of offence and where the prosecution witnesses reveals the names of other accused who are not arrayed as accused in the charge sheet. In those circumstances, virtually the Courts cannot summon any person as accused though evidence on record would reveal their role under Section 319 Cr.P.C if the limitation aspect is applicable under Section 468 Cr.P.C. Here, Section 319(4) Cr.P.C. clearly postulates that when the Court proceeds against any person under Sub-section 1, the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. So, in fact, by virtue of Sub-Section (4)(b) of Section 319 Cr.P.C., a legal fiction is created that the cognizance would presumed to have been taken so far as the newly added accused on the date on which the Court initially took cognizance of the offence upon which the inquiry or trial was commenced. So, it goes without saying that if the Court had already taken cognizance of the offence within the period of limitation and when the Court had an occasion to summon the persons other than the accused looking into the evidence on record under Section 319 20 AVRB,J Crl.R.C. No.675/2009 Cr.P.C. then no bar of limitation would arise by way of such inclusion. A close perusal of Section 319(4)(b) Cr.P.C. means that provision of Section 468 Cr.P.C. shall have no application while summoning the persons under Section 319 Cr.P.C basing on the evidence available on record.
23. It appears that the learned Additional Sessions Judge while deciding the Criminal Revision Petition No.32 of 2007 did not look into Section 319(4)(b) of Cr.P.C. and, in my considered view, he erroneously allowed the Criminal Revision Petition No.32 of 2007 on the strength of the legal provisions under Section 468 Cr.P.C.
24. Having regard to the language employed in Section 319(4)(b) Cr.P.C., this Court is of the considered view that Section 468 Cr.P.C. would not bar the summoning of persons other than the accused basing on the evidence available on record. Having regard to the above, this Court is of the considered view that the order in Criminal Revision Petition No.32 of 2007, dated 24.04.2007, is not in accordance with law as such it is liable to be set-aside.
25. The learned Additional Judicial Magistrate of First Class, Kovur, in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003, accepted the counter of the existing accused i.e., A-1 to A-3 and 21 AVRB,J Crl.R.C. No.675/2009 decided the same without affording an opportunity of hearing to proposed A-4 to A-6. In that view of the matter the order of the learned Magistrate was to be set-aside to afford a reasonable opportunity to the persons who were sought to be summoned. Instead of doing so, the learned III Additional District and Sessions Judge (Fast Track Court), Nellore allowed the Criminal Revision Petition No.32 of 2007 by giving the finding that the provisions under Section 468 Cr.P.C. are applicable to exercise the power under Section 319 Cr.P.C.
26. In the light of the above, the order in Criminal Revision Petition No.32 of 2007, dated 24.04.2007, is set-aside by allowing this Criminal Revision Case thereby setting-aside the order in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003, dated 30.03.2007, only on the ground that the order of the learned Magistrate in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003 in summoning the respondent Nos.2 to 4 herein as A-4 to A-6 is not tenable without affording an opportunity of hearing to them. Hence, the learned Additional Judicial Magistrate of First Class, Kovur, is directed to afford reasonable opportunity of hearing to the proposed A-4 to A-6 i.e., respondent Nos.2 to 4 herein, if necessary, by giving a chance to file their objections in the form of 22 AVRB,J Crl.R.C. No.675/2009 counter, and decide the application in Crl.M.P. No.447 of 2006 in C.C. No.271 of 2003 afresh within a period of six (6) weeks from the date of receipt of a copy of this order.
27. Registry is directed to transmit a copy of this order along with the trial Court record, if any, on or before 02.12.2022, without fail.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date : 25.11.2022 DSH