Andhra Pradesh High Court - Amravati
S.Padmaja vs State Of Ap on 28 October, 2022
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HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.1104 OF 2019
ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code ('Cr.P.C.' in short), by the petitioner, who is the accused No.2 in C.C.No.421 of 2018 on the file of the learned Additional Judicial First Class Magistrate, Markapur, feeling aggrieved by the order dated 10.09.2018 taking cognizance of the case against the revision petitioner for the offence punishable under Section 435 read with 109 of the Indian Penal Code (for short, 'IPC').
2. The petitioner herein is the accused No.2 whereas the respondent No.2 herein is the de facto complainant in C.C.No.421 of 2018 on the file of the learned Additional Judicial First Class Magistrate, Markapur.
3. The 2nd respondent/ de facto complainant presented a report dated 24.06.2017 to the Station House officer, Markapur town Police Station and the same was registered as a case in Crime No.108 of 2017 of Markapur Town Police Station, Prakasam District for the offences punishable under Sections 435 and 109 IPC against A-1 and the petitioner/A2. The respondent police investigated into the case and filed 2 charge sheet on the file of the Court of the learned Additional Judicial First Class Magistrate, Markapur, deleting A-1 and the petitioner/A-2 from the array of the accused as their involvement in this case is not proved and added one Podatarapu Anji as accused. Pursuantly, the learned Magistrate issued notice to the de facto complainant /2nd respondent herein calling for objections for deletion of the names of the accused/A-1 and A-2 and in response thereof the de facto complainant/respondent No.2 filed memo dated 04.07.2018 seeking time to file objections. Therefore, the learned Magistrate vide orders dated 10.09.2018 took cognizance of the case against the accused A-1 and A-2 also and registered the case as C.C. and ordered for issuance of summons to A1 to A3.
4. Aggrieved thereby, the petitioner/A-2 preferred this Criminal Revision Case.
5. The contentions raised in the Criminal Revision Case, in brief, are that, the petitioner/A-2 is innocent and she did not commit any offence and the police, after thorough investigation, filed charge sheet stating that it came to light during the course of investigation that the offence was committed by one Podatarapu Anji and hence he was shown as accused by deleting the A-1 and the petitioner/A-2 from the 3 array of the accused on the ground that their involvement in this case is not proved. The First Information Report and 161 CrPC statements of the witnesses do not show the involvement of the petitioner/A-2 in the alleged crime and the same was also substantiated by the investigation done by the investigating officer. Thus, the order of the learned Magistrate is unsustainable, as the same is contrary to the material placed before him. Hence, prayed to allow the Criminal Revision Case by setting aside the impugned order.
6. Heard Sri Narasimha Rao Gudiseva, learned counsel for the Revision Petitioner/2nd accused, Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the 1st respondent-State. The 2nd respondent though entered appearance through an Advocate, he was not represented throughout the proceedings.
7. Sri Narasimha Rao Gudiseva, learned counsel for the revision petitioner, in elaboration, would submit that 161 CrPC statements recorded by the Investigating Officer do not show either the presence or involvement of the petitioner/A-2 in this crime. He would further submit that during the course of investigation, it came to light that the accused/A1 and A2 did not commit the offence and one Podatarapu Anji had committed the offence and pursuantly, the investigating officer filed 4 charge sheet deleting the accused/A-1 and A-2 and had shown the said Podatarapu Anji as the sole accused that had committed the offence. He would further submit that, pursuant to the notice issued by the Court below, the de facto complainant/ 2 nd respondent did not file any objections raising valid grounds, except filing a memo seeking time to file objections against deletion of the petitioner/A-2. He would further submit that without there being any material before him to connect the petitioner/A-2 with the crime, the learned Magistrate without going through the material available on record, in a mechanical way took cognizance against the petitioner/A-2 vide the impugned orders. Thus, the impugned order is unsustainable and the same is liable to be set aside. In support of his contentions, the learned counsel has relied on the decision in Vishnu Kumar Tiwari vs. State of Uttar Pradesh1.
8. The learned Special Assistant Public Prosecutor would submit that the order impugned being interlocutory, revision is not maintainable under Section 397(2) of CrPC and the remedy available to the petitioner is invocation of inherent powers of this Court under Section 482 CrPC and prayed this Court to pass appropriate orders. 1 . (2019) 8 Supreme Court Cases 27.
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9. Regarding maintainability of revision against the impugned order taking cognizance of an offence, it is appropriate to extract the observations of their Lordships of Hon'ble Supreme Court in Girish Kumar Suneja v. Central Bureau of Investigation2.
"21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind--an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue."
10. From the above, it is evident that order taking cognizance is an intermediate order, since if it is reversed, it has the effect of terminating the proceedings against the accused. Thus, there is no force in the contentions advanced by the learned Special Assistant Public Prosecutor in this regard. Thus, revision is maintainable.
11. Regarding the procedure to be followed by a Magistrate when confronted with the final report, in Vishnu Kumar Tiwari v. State of 2 .2017(14) Supreme Court Cases 809 6 U.P. relied on by the learned counsel for the petitioner/A-2, their Lordships of Hon'ble Supreme Court held that paras-26, 28, 29, 30 and 34 as follows:
"26. This is a case where following the first information report, the investigating officer conducted an investigation. Statements were taken from the complainant, his wife and his son. This is apart from the statements which were taken from the doctors who treated the daughter of the second respondent complainant. The investigating officer concluded that there is no material which would warrant the accused being sent for trial. When such a report is filed before the court, it is beyond the shade of doubt that the Magistrate may still choose to reject the final report and proceed to take cognizance of the offences, which in his view, are seen committed. He may, on the other hand, after pondering over the materials, which would include the statements of witnesses collected by the investigating officer, decide to accept the final report. He may entertain the view that it is a case where further investigation by the officer is warranted before a decision is taken as to whether cognizance is to be taken or not.
28. In this case, the High Court proceeded on the basis, as we have noticed, that the Magistrate has not taken into consideration the protest petition and it was his pious duty to consider the facts mentioned in the petition. We have examined the order passed by the Magistrate. He does refer to the protest petition. The contents therein are undoubtedly noticed. The Magistrate says that he has gone through the first information report. He finds that the complainant is not an eyewitness in regard to the death of his daughter. He recorded that he has gone through the statements of witnesses given under Section 161. We may notice that the following findings were entered in regard to the case of torture committed against the complainant's daughter:
"... First of all I have gone through the statement of Shri Shiv Shankar Ojha who is complainant in this case. Although this witness has partly favoured the incident but here it is pertinent to mention that at the time of death of deceased Jaya, this witness was not present. When it was asked from this witness that whether after you received information of torture committed to you daughter, you had 7 made any application anywhere or you had informed this through any relation, etc. In reply to this question, he has stated that "no". I have also duly gone through the statement of Smt Shakuntala Devi, mother of deceased. Mother of deceased has given statement to the investigating officer that my son-in-law is working in Haryana in a private job."
29. Thereafter, he referred to the statement of the mother and brother of the deceased. He refers to the statements of the doctors. The doctors concluded that the deceased died due to her illness. One of the doctors have stated that the mother of the patient Smt Shakuntala had signed the admission form. The patient was examined. The patient had delivered a child two months ago by Caesarean operation. She was suffering from fever. She was breathing rapidly. Her body was suffering from jaundice. She was in need of respiratory support machine. The disease of the patient was septic shock and multiple organ failure. She died on 8-10-2017. The death was found to be due to her illness.
30. The Chief Judicial Magistrate, in fact, proceeded to take the view that the Magistrate has to take cognizance on the basis of the statements of the witnesses recorded by the investigating officer and materials collected. He further finds that if cognizance is taken on the basis of protest petition and documents annexed, that is illegal. It is after that it was found that the deceased died due to her illness and no prima facie case was made out against the accused persons.
34. On the basis of the materials which include the statements of the doctors and after adverting to the contentions of the protest petition, the Magistrate has come to the conclusion that it is not a fit case for being continued and the matter should end as the daughter of the second respondent/complainant died due to illness. It is a finding which is arrived at by the court with reference to the statements of the medical practitioners. Equally, in the circumstances which led to the unfortunate death of the daughter of the second respondent complainant, it is found no case was made out under Section 201 IPC. It would appear that before the Sessions Judge, the aspect relating to Section 498-A or in fact the provisions relating to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was not pressed by the second respondent. That apart, we also notice 8 that the Magistrate has referred to the statement of the complainant that there was no complaint made about the torture apparently based on dowry demand as alleged."
12. From the above, it is evident that upon final report, the Court may reject the final report and take cognizance of the offence, which in its view, are seen committed, it may accept the final report or it may order further investigation. However, law mandates notice to the informant/complainant where the Court contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report in the form of a protest petition.
13. It is relevant here to extract the observations of the Hon'ble Supreme Court in Sunil Bharti Mittal vs. Central Bureau of Investigation3 at paras-48, 49, 52 and 54.
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.3
. (2015) 4 Supreme Court Cases 609 9
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
54. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19-3-2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLPs (Crl.) Nos. 3326-27 of 2013 filed by Telecom Watchdog are dismissed."
14. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form an opinion as to whether the material available on record is sufficient to take cognizance or not. At the stage of taking cognizance, the only consideration before the court remains is to consider judiciously whether the material on which the prosecution proposes to prosecute 10 the accused brings out a prima facie case or not. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
15. Keeping in view the law laid down, now the facts of the case are to be looked into.
16. A perusal of the material shows that, the respondent No.2/ L.W.1 gave a report to the police on 24.06.2017 stating that the petitioner/A2, who is their relative, brought up his younger brother Nagisetty Venkateswarlu (A-1) and she (A-2) laid her evil eye on the properties of their family and that on 04.04.2017 at about 10.30 p.m., A-1 came with a kitchen knife and tried to kill him and again on 22.05.2017 he attacked his mother and got her injured and though the de facto complainant was maintaining composure and was trying to pacify; encouraged by relatives, A-1 used to behave rude and that on 20th when he was away from his house and went to ophthalmologist at Warangal, his wife (L.W.2) informed him over phone that at about 12.00 mid night, A-1 came and gutted her Hero-I Smart bike and went 11 away and the Fire department people came and extinguished the fire and alleging that he has threat from A-1 and A-2, prayed the police to take action against them as per law. The contents of the 161 (3) CrPC statement of L.W.1 are in tune with his report.
17. The 161(3) CrPC statement of Smt. Nagisetty Shambhavi, wife of the respondent No.2 (de facto complainant) goes to show that one Podatharapu Anji, who is friend of A1, was coming to their house now and then for A-1 by consuming alcohol. L.W.2 reprimanded the said Anji not to come to their house consuming alcohol. On 20.06.2017 at about 12.00 mid night, hearing some noise infront of their house, she along with her in-laws and her father-in-law's brother went outside and witnessed the said Anji, who was awfully drunk, pouring petrol on her bike and setting it ablaze and thereafter he ran away. She informed the incident to her husband over phone. Thereafter, her husband gave report against A-1 on the premise that his brother (A-1) might have instigated his friend to commit the offence.
18. L.W.3, L.W.4 & L.W.5, who are mother, father and junior paternal uncle of L.W.1/ de facto complainant/ 2nd respondent herein, stated in similar lines in their 161(3) CrPC statements. 12
19. Considering the 161(3) CrPC statements of L.Ws.2 to 5, the investigating officer filed charge sheet deleting A-1 and A-2 from array of the accused and included Podatharapu Anji as sole accused. In response to notice, the de facto complainant/L.W.1 /respondent No.2 herein filed memo stating that he has objection regarding deletion of the petitioner/A-2 and sought time for filing written objection in this regard.
20. The report lodged by L.W.1 nowhere attributes any overt act against the petitioner/A-2 in relation to the incident in question. It only contains a stray sentence to the effect that the petitioner/A-2 was controlling his brother/A1 and that she had laid an evil eye on his properties.
21. As per the record, L.W.1/de facto complainant/ respondent No.2 is not an eyewitness to the incident and he was informed by his wife- L.W.2 regarding the incident. It is not brought to the notice of this Court regarding registration of any other crimes prior to the case on hand with regard to the alleged acts of A-1 in trying to kill either L.W.1 or his mother/L.W.4.
22. The 161(3) CrPC statements of L.Ws.2 to 5, who are the eyewitnesses to the incident, clearly show that one Podatarapu Anji, 13 who was included as an accused (A-3) by the investigating officer while filing charge sheet, did commit the offence.
23. Further, a perusal of the memo filed by the de facto complainant/ L.W.1/ respondent No.2 shows that he did not raise any valid objection for deletion of the petitioner/A-2 and what all he stated therein is that he has objection for deletion and except stating so he did not either place any material on record or raise any valid grounds to connect the petitioner/A-2 with the incident in question.
24. Therefore, it is evident that no material whatsoever is available on record for the Court below to take cognizance against the petitioner/A-2. Thus, the Magistrate did not put forth any reasons for taking cognizance against the petitioner/A-2 and took cognizance in a mechanical way.
25. In view of the above, the order impugned is unsustainable in law and the same is liable to be set aside.
26. Accordingly, the Criminal Revision Case is allowed by setting aside the impugned order dated 10.09.2018 passed in C.C.No.421 of 2018 on the file of the Court of the learned Additional Judicial First Class Magistrate, Markapur, Prakasham District so far as it relates to the petitioner/A-2. The petitioner/A2 is hereby deleted from array of the 14 accused in C.C.No.421 of 2018 by accepting the final report filed by the Investigating Officer in so far as the petitioner/A-2.
As a sequel, pending miscellaneous applications, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________________ JUSTICE RAVI CHEEMALAPATI Date : 28.10.2022 RR 15 HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL REVISION CASE No.1104 OF 2019 Date : 28.10.2022 RR