Andhra Pradesh High Court - Amravati
Yerraguntla Venkateshwara Rao vs The State Of Andhra Pradesh on 11 October, 2023
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
Criminal Petition No.4368 of 2023
ORDER:-
The Criminal Petition, under Section 482 Cr.P.C., has been filed by the petitioner/A-1 to quash the proceedings in Crime No.246 of 2023 of Bhavanipuram Police Station, Vijayawada City.
2. A case has been registered against the petitioner and others for the offences punishable under Sections 177, 181, 182, 191, 192, 195, 196, 199, 200, 211, 420 read with 34 IPC.
3. Originally, a private complaint has been filed by 2nd respondent herein against the petitioner/A1 and others under Section 200 Cr.P.C., on the file of the Chief Metropolitan Magistrate, Vijayawada, and the learned Magistrate referred the said complaint to police under Section 156(3) Cr.P.C. Pursuant to the same, police registered the same as above crime.
4. Brief facts of the case are that, prior to 20.06.2022, A1 who is defacto complainant in Crime No.356 of 2022 of Bhavanipuram Police Station, along with other accused produced 2 false statements before the police and got registered the said case against the defacto complainant herein by misleading the investigating agency and by giving false evidence against the defacto complainant herein.
5. Learned counsel for the petitioner submits that at the time of forwarding the complaint to police under Section 156(3) Cr.P.C., it is obligatory on the part of the learned Magistrate to apply his mind and record reasons in terms of dictum laid down in the decision in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others1. According to the counsel for the petitioner herein, even accepting the entire accusations mentioned in the FIR, no prima facie case is made out against the petitioner for the offences alleged.
6. On the contrary, learned Special Assistant Public Prosecutor opposed the version of learned counsel for the petitioner on the ground that there are specific accusations contained in the FIR. Truth or otherwise of the said accusations have to be decided during the course of trial.
1 1 (2015) 5 SCC 283 3
7. Heard. Perused the record.
8. A private complaint has been filed for the aforesaid offences as against the petitioner and others and the learned Magistrate forwarded the complaint under Section 156(3) Cr.P.C., stating as under;
"The complainant Sanikommu Konda Reddy, S/o Rami Reddy, vide Crl.M.P.No.287/2023 against A1 to A4 for the offences punishable under Sections 177, 181, 182, 191, 192, 195, 196, 199, 200, 211, 420 r/w 34 IPC and also Section 120b IPC is hereby forwarded to the Station House Officer, Bhavanipuram Police Station, Vijayawada, under Section 156(3) Cr.P.C. as per the Orders of this Court on 16.02.2023. Hence, the Station House Officer, Bhavanipuram PS, Vijayawada, is hereby directed to receive the complaint for registration, investigation and report. Call on 08.06.2023."
9. According to the learned counsel for the petitioner, the learned Magistrate has not assigned any reasons while forwarding the complaint to the police under Section 156(3) Cr.P.C.
10. In support of his contention, he relied upon the decision in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others (1 supra) wherein it was held that;
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"In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/latches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."5
11. A reading of the aforesaid Judgment goes to show that an application under Section 156(3) Cr.P.C. is to be supported by an affidavit, so that the person making application would be conscious and also endeavor to see that no false affidavit is made. Except that, there is no observation to the extent that while forwarding the complaint, the Magistrate has to assign reasons. A reading of the said judgment also goes to show that in respect of registration of FIRs, it is mandatory for the police to register FIRs on receipt of reports in respect of all cognizable offences, yet, there may be instances where preliminary enquiry has to be conducted. In certain cases, preliminary enquiry is necessary, but it is not for the purpose for testing the varacity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. It is further stated that the police has to embark in conducting preliminary enquiry only in certain circumstances. In connection with that, the Hon'ble Apex Court has mentioned certain category of cases in which preliminary enquiry may be made which are as under:
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(a) Matrimonial disputes/family disputes.
(b) Commercial offences.
(c) Medical negligence cases.
(d) Corruption cases and;
(e) Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months in reporting the matter without satisfactorily explaining the reasons for delay.
In the above circumstances, it is essential for the Police Officer, on receipt of a complaint, to conduct a preliminary enquiry.
12. In the present case on hand, a case has been registered as against the petitioner herein and others for the aforesaid offences. It is not the case of the petitioner herein that the present complaint has been filed at a belated stage. It does not come within the purview of the guidelines laid down in Priyanka Srivastava Case (supra) for the reason that the case on hand would not in any way come within the purview of the category of cases that are mentioned therein. The Magistrates are over burdened with work. The tendency was in such a way that as and 7 when a complaint has been filed before the Magistrate, on request made by the complainant the complaint would be referred to police under Section 156(3) Cr.P.C. for proper investigation. In such circumstances, the learned Magistrate is not entitled to go into the merits of the case and assign reasons while forwarding the complaint to the police under Section 156(3) Cr.P.C.
13. Learned counsel for the petitioner has also relied upon a decision reported in Kailash Vijayvargiya Vs. Rajlakshmi Chaudhuri and others2 wherein it was categorically held that;
In Ramdev Food Products Private Limited (supra), examining whether discretion of the Magistrate to call for a report under Section 202 instead of directing investigation under Section 156(3) is controlled by any defined parameters, it was held thus:
"22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.2
2023 ALL SCR (Crl.) 1078 8 22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed". Category of cases falling under para 120.6 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] may fall under Section 202.
22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case." 22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case." Explaining the nature of cases to be dealt with under Section 202 of the Code, the judgment observes, are those cases where the material available is not clear to proceed further. The Magistrate, though in seisin of the matter having taken cognizance, has to decide whether there is any ground to proceed further. Further, Section 202 not only refers to an inquiry but also to an investigation. Thus, in such cases, the Police cannot on its own exercise the power of arrest in course of making its report in pursuance of the direction under Section 202 of the Code. When there is an ambiguity with the material available on the record to proceed further, such cases can be dealt under Section 202 Cr.P.C inquiry. Further, Section 202 Cr.P.C. not only refers to an inquiry but also to an investigation.
14. It is stated in the aforesaid Judgment, a direction under Section 156(3) Cr.P.C. is to be issued only on application of mind by the Magistrate. When the Magistrate is not inclined to take cognizance of the offences, the other option left for him, is to 9 direct the police to investigate the said case under Section 156(3) Cr.P.C.
15. The decision relied on by the learned counsel for the petitioner is with regard to filing of affidavit and to the extent of assigning reasons when the Magistrate is taking cognizance of the offence.
16. The present quash petition has been filed at the stage of registration of FIR and when the investigation is at the nascent stage. A reading of the contents in the FIR would make out a prima facie case. Truth or otherwise of the said accusation has to be decided in pursuance to the investigation done by the police. Time and again, this Court and the Hon'ble Apex Court has taken a view that at the stage of FIR it would be a premature, and the investigation should not be scuttled at that stage. It is for the investigating agency to conduct investigation and file charge sheet. At this stage, this Court would not be in a position to go into the disputed questions of fact in a petition under Section 482 Cr.P.C. and interfere with the proceedings. 10
17. Accordingly, with the above direction, the Criminal Petition is dismissed.
As a sequel thereto, the miscellaneous applications, if any, pending in this Criminal Petition shall stand closed.
______________________________ JUSTICE K. SREENIVASA REDDY Date: 11.10.2023.
ARB 11 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY Criminal Petition No.4368 of 2023 Date: 11.10.2023 ARB