Andhra Pradesh High Court - Amravati
Vejella Rajendra Prasad vs The State Of Andhra Pradesh on 21 April, 2023
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATHI
HON'BLE SRI JUSTICE NINALA JAYASURYA
Criminal Petition No.4635 OF 2022
Vejella Rajendra Prasad ... Petitioner
Versus
State of Andhra Pradesh, Rep. by its
Public Prosecutor and another. ..... Respondents
Counsel for the petitioner : Mr.N.Ashwani Kumar
Counsel for the 1st respondent : Assistant Public Prosecutor
Counsel for the 2nd respondent : Mr.Y.V.Ravi Prasad,
Senior Counsel,
Assisted by Mr.Y.V.Anil Kumar
ORDER:
The present Criminal Petition is filed seeking to quash the proceedings in C.C.No.3913 of 2020 on the file of the Court of IV Additional Chief Metropolitan Magistrate, Vijayawada, wherein the petitioner/sole accused is facing charges for the alleged offences under Sections 354-D, 509 and 506 of Indian Penal Code (for short 'I.P.C.').
2. Heard Mr.N.Ashwani Kumar, learned counsel for the petitioner. Also heard learned Assistant Public Prosecutor representing the 1st respondent-State and Mr.Y.V.Ravi Prasad, learned Senior Counsel appearing for the 2 nd respondent.
3. The learned counsel for the petitioner while referring to the allegations in the Charge Sheet and the contentions raised in the 2 quash petition, advanced elaborate arguments that the ingredients of Sections 354-D, 509 and 506 of IPC are not attracted in the facts and circumstances of the case. The learned counsel submits that no specific allegations were leveled against the petitioner in the complaint and on the basis of mere omnibus allegations, no case can be made out, much less for the offences referred to above. Referring to Sections 354-A, 354-D, 509 and 506 of I.P.C., he would further submit that no case properties(mobiles) were seized to substantiate the allegations that the petitioner was making Whatsapp calls and there is no evidence of sending messages(Whatsapp chat history) to the 2nd respondent-de facto complainant and that the statements of prosecution witnesses, which are stereo typed, would not support the case of the 2nd respondent. Elaborating his arguments further with reference to the Section 354-D, the learned counsel contends that to attract the allegations of 'Stalking', there should be an act of a man following woman or attempt to contact her to have personal interaction 'repeatedly', though there is clear indication of disinterest by her. He submits that the allegations in the complaint and the Charge Sheet, even at their face value do not satisfy the ingredients to constitute the offence alleged against the petitioner.
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4. Insofar as Section 354-D(i)(ii), he would contend that without any material, the alleged offence cannot be proved. He submits that infact, a false case is foisted against the petitioner and the delay in lodging the compliant/First Information Report (for short 'FIR'), without explaining the reasons for the same, would itself is a proof positive that it is lacking in substance and bonafides. The learned counsel also contends that the order of the learned Magistrate taking cognizance of the offences itself is not sustainable, as no reasons much less by application of mind were assigned. Referring to the decisions in 1.Mohan Rayalu v. State of Telangana & Others1, 2. Abdul Razak v. State of Kerala2, 3.Pepsi Foods Ltd., and Another v. Special Judicial Magistrate & another3, 4.Mehmood Ul Rehman v.Khazir Mohammad Tunda & Others4, 5.State of Gujarat v. Afroz Mohammed Hasanfatta5, 6.Karunakar Patra v. State6, 7. Pradeep S.Wodeyar v. State of Karnataka7, 8. Pervej v. State of Uttarakhand and Ors.8, 9.Sunil Bharati Mittal v. Central 1 2019(2) ALT(Crl.)41(A.P.) 2 2019 SCC Online Ker 5334 3 (1998) 5 SCC 749 4 (2015) 12 SCC 420 5 (2019) 20 SCC 539 6 MANU/DE/0270/2022 7 2021 SCC Online SC 1140 8 MANU/UC/1119/2019 4 Bureau of Investigation9 and 10.Sunil Todi and Others v. State of Gujarat and Another 10, the learned counsel would strenuously contend that continuation of proceedings against the petitioner constitutes abuse of process of Law and therefore, the proceedings under challenge are liable to the quashed in exercise of powers under Section 482 of Code of Criminal Procedure (for short 'Cr.P.C.').
5. The learned Assistant Public Prosecutor, on the other hand, contends that the jurisdiction of the High Court under Section 482 of Cr.P.C., has to be exercised sparingly and in the rarest of rare cases, only when the Court comes to a conclusion that the allegations are patently absurd or even at their face value would not attract the ingredients of an offence. Stating that in the present case the allegations made against the petitioner are serious in nature, he submits that the veracity or otherwise of the same are required to be examined by conducting a Trial. He submits that the petitioner would have ample opportunity to prove his innocence and in such circumstances, the relief sought for by the petitioner in the absence of valid grounds, deserves no 9 (2015) 4 SCC 609 10 2021 SCC Online SC 1174 5 consideration. Accordingly, he prays for dismissal of the Criminal Petition.
6. Mr.Y.V.Ravi Prasad, learned Senior Counsel representing the 2nd respondent while taking a similar stand, advanced elaborate arguments. Refuting the contentions that the ingredients of Section 354-D of I.P.C., are not attracted, he argues that from the material on record, it is clear that the first limb of Section 354-D(1)(i) of I.P.C., is attracted, even assuming that the second limb of Section 354-D(1)(ii) is not attracted. Contending that mere following and contacting a woman is sufficient to attract offence under Section 354-D(1)(i) of I.P.C., he submits that at the time of taking cognizance, the Court is required to satisfy itself on a reading from the complaint, whether the allegations prima facie, constitutes an offence. The learned counsel also submits that despite exhibiting disinterest by the 2nd respondent-de facto complainant, the petitioner/accused not only made Calls, but also threatened her by following and therefore, the ingredients of Sections 354-D(1)(i), 506 and 509 of I.P.C., are attracted. He submits that Section 161 Cr.P.C., statements cannot be looked into and also contends that in fact, the petitioner has a remedy under Section 239 of Cr.P.C., and instead of seeking discharge, if no material is available as contended, the 6 petitioner filed the present quash petition and the same cannot be entertained. He submits that under the guise of present proceedings, the petitioner cannot seek conduct of mini trial and the same is not legally sustainable. With regard to the contention that the learned Magistrate has not applied his mind before taking cognizance of the alleged offences, the learned Senior counsel submits that such a plea was not raised in the grounds and that even otherwise, the same is without any merit. Making the said submissions and relying on the decisions of the Hon'ble Supreme Court in State of Uttar Pradesh & Others v.
Akhil Sharda & Others11, Priti Saraf & Another v. State of NCT of Delhi & Another12, Ramveer Upadhyay & Another v. State of U.P., & Anr.(Special Leave Petition (Crl.)No.2953 of 2022), Crl.P.No.225 of 2022 dated 25.01.2022 and Pradeep S.Wodeyar v. State of Karnataka13, he seeks for dismissal of the Criminal Petition.
7. This Court has considered the submissions made by both sides. Perused the material on record.
8. At the outset, it may be noted that though the charge sheet was laid for the alleged offences under Sections 354-A, 354-D, 11 SCC 2022 SCC OnLine SC 820 12 2021 SCC OnLine SC 206 13 2021 SCC Online SC 1140 7 509 and 506 of I.P.C., the learned Magistrate has taken cognizance of the offences under Sections 354-D, 509 and 506 of I.P.C.
9. Before dealing with the contentions with regard to registration of crime and filing of charge sheet for the offences alleged against the petitioner/sole accused, it may be appropriate to deal with the contention regarding the cognizance of the offences taken by the learned Magistrate, as it goes to the very root of the matter.
10. In Mehmood UL Rehman v. Khazir Mohammad Tunda and Others14 and Sunil Todi and Others v. State of Gujarat and Another15(referred to supra), the Hon'ble Supreme Court was dealing with the cases wherein the cognizance of offence was taken by the learned Magistrate under Section 190 of Cr.P.C., and Section 138 of Negotiable Instrument Act respectively. The said decisions, are not of much aid to the petitioner in the facts and circumstances of the case, as the learned Magistrate has taken cognizance of the offences on the basis of a police report and more particularly in view of the three- Judge Bench judgment of the Hon'ble Supreme Court in Pradeep 14 (2015) 12 SCC 420 15 2021 SCC Online SC 1174 8 S. Wodeyar's case referred to above. In the said judgment, the Hon'ble Supreme Court referred to a catena of decisions including Mehmood UL Rehman's case and Afroz Mohammed Hasanfatta's case.
11. Afroz Mohammed Hasanfatta is a latest case, wherein two-Judge Bench of the Hon'ble Supreme Court while distinguishing the earlier decision in Pepsi Foods Limited case as also Mehmood Ul Rehman dealt with the difference in standard of proof for application of mind with reference to cognizance based on a complaint and police report. In Para Nos.23 and 24, it was held as follows:
"23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police under Section 190(1)(b) Cr.P.C. where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for 9 proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking it on file.
24. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477-A and 120-B I.P.C., the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality."
12. Mohan Rayalu's case, relied on by the learned counsel for the petitioner is with reference to taking cognizance of an offence pursuant to a private complaint, wherein a learned Judge quashed the criminal proceedings inter alia, on the ground that the learned Magistrate has not assigned any reasons.
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13. In Sunil Bharati Mittal's case, a three-Judge Bench of the Hon'ble Supreme Court referring to provisions of Sections 190, 200, 202 and 204 of Cr.P.C., and taking cognizance of offences by the learned Magistrate at para No.48 held as follows:
"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."
14. At Para No.52, the Hon'ble Supreme Court further held as follows:
" 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."
15. In Pepsi Foods Limited case referred to supra, the Hon'ble Supreme Court referring to the powers of the High Court 11 under Articles 226 and 227 of the Constitution of India as also under Section 482 of Cr.P.C., allowed the appeal against the Order of the High Court of Judicature at Allahabad(Lucknow Bench) and quashed the complaint under Section 7 r/w Section 16 of the Prevention of Food Adulteration Act of 1954. At Para No.28, the Hon'ble Supreme Court held as follows:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the compliant and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
16. However referring to Para No.23 in Afroz Mohammed Hasanfatta's case, extracted above, the Hon'ble three-Judge Bench in Pradeep S.Wodeyar's case held as follows: 12
"87. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 Cr.P.C., and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta(supra). The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous."
17. In the light of the decision of the Hon'ble Supreme Court in Pradeep S. Wodeyar's case, impliedly approving the decision in Afroz Mohammed Hasanfatta, this Court is not inclined to accept the contentions raised by the learned counsel for the petitioner as the learned Magistrate has taken cognizance of the offence on the basis of police report and accordingly, the same are rejected.
18. Coming to the contention that no ingredients of offences alleged against the petitioner are attracted and on the basis of vague and omnibus allegations, no case can be made out, it would be appropriate to refer to the relevant provisions of law, extracted herein below:
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354-D. Stalking.--(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
Section 509. Word, gesture or act intended to insult the modesty of a woman.
Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, 1 [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
14Section 506. Punishment for criminal intimidation. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
19. Testing the arguments that the ingredients of Section 354- D-Stalking are not attracted, a learned Judge of the High Court of Kerala at Ernakulam in Abdul Razak's case referred to supra by a common order was pleased to quash the criminal proceedings initiated in connection with the offences punishable under Sections 354-D, 294(b) of I.P.C., and the order passed by the learned Judicial First Class Magistrate, with regard to interim custody of mobile phone seized by the police. It is a case where the de facto complainant alleged that her photograph was taken without her permission and when she objected, the petitioner therein had used obscene words. The learned Judge opined that "a solitary instance as in the instant one cannot be remotely contemplated as Stalking as understood in Section 354-D of I.P.C.,"
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20. In Karunakar Patra's case, referred to supra, a learned Judge of High Court of Delhi was dealing with a matter seeking quashment of First Information Report (for short 'F.I.R.'), registered for the offences under Sections 354-A and 506 of I.P.C. The learned Judge in the facts and circumstances of the case was pleased to quash the F.I.R., holding inter alia that the same was a counterblast and was solely registered to arm-twist the petitioner therein and his wife into withdrawing the complaints that had been filed against the respondent and her family.
21. The said decisions, are not applicable to the facts and circumstances of the case as the allegations of the 2nd respondent inter alia are that the petitioner/sole accused is following her to satisfy his desire, despite a clear indication of disinterest and intimidating her, which are serious in nature and required to be disproved during the course of Trial. From a reading of the complaint, it would prima facie appear that some attempts were made by the petitioner and thereby the ingredients of Section 354-D are attracted. Unless, the allegations made in the F.I.R./complaint, taken at their face value, do not prima facie constitute any offence or make out a case, it is settled law that the offence alleged cannot be quashed. From a reading of the complaint, no such conclusion can be arrived at. 16
22. Further, as held by the Hon'ble Supreme Court, in Akhil Sharda & Others, referred to supra, no mini trial can be conducted by the High Court in exercise of powers under Section 482 of Cr.P.C., and at the stage of deciding the application under Section 482 of Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.
23. In Priti Saraf and another v. State of NCT of Delhi & another16, the Hon'ble Supreme Court at Para Nos.28 and 31 held as follows:
"28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize the complaint/FIR/charge sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
29....
30.....
31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the compliant/FIR/charge sheet in exercise of its inherent jurisdiction."16
2021 SCC Online SC 206 17
24. In the latest judgment in Ramveer Upadhyay & Another v. State of U.P., & Anr.(Special Leave Petition (Crl.)No.2953 of 2022), the Hon'ble Supreme Court referring to the powers of the High Court under Section 482 of Cr.P.C., opined that "criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of Cr.P.C., only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C., to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."
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25. In the light of the decisions of the Hon'ble Supreme Court referred to supra, on which reliance is placed by the learned counsel for the 2nd respondent, this Court is of the opinion that the case on hand is not an exceptional one, warranting exercise of inherent powers under Section 482 of Cr.P.C.
26. Further, the contention with regard to non-availability of material etc., and various other grounds/contentions in the opinion of this Court are in the nature of defence, which the petitioner/sole accused may raise at the time of framing charges and seek discharge under Section 239 of Cr.P.C., If such a course is adopted, the learned Magistrate would examine the same and record a finding as to the continuation of further proceedings or otherwise. Accordingly, the contentions of the learned counsel for the petitioner are rejected.
27. For the aforegoing reasons, the Criminal Petition is dismissed.
Consequently, miscellaneous applications, pending if any, shall stand closed.
_____________________ NINALA JAYASURYA, J Date: 21.04.2023.
BLV 19 HON'BLE SRI JUSTICE NINALA JAYASURYA Criminal Petition No.4635 OF 2022 Dt:21.04.2023 BLV