Andhra Pradesh High Court - Amravati
B.Uma Maheswara Rao vs State Of Ap on 5 November, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION NO.3304 of 2019
ORDER:
This criminal petition is filed under Section 482 of Criminal Procedure Code (for short "Cr.P.C.") to quash the proceedings in Crime No.126 of 2019 on the file of the A.S.Nagar Police Station, Vijayawada City, registered for the offences punishable under Section 143, 290, 188, 171 (H) read with 149 of Indian Penal Code (for short "I.P.C.").
The respondent/police lodged a complaint alleging that Bonda Uma Maheswar Rao, petitioner No.1 herein and father of petitioner Nos.2 and 3, Telugu Desam Party contesting candidate, for the office of MLA, Central Constituency, Vijayawada, has obtained permission from the Deputy Commissioner of Police (Law and Order), Zone II, Vijayawada on 07.04.2019 to conduct election campaign on 09.04.2019 from 09.00 a.m. to 06.00 p.m. starting from Kandrika via Prakash Nagar, Paipula Road, Singh Nagar Bridge, Government Press, Bhagath Singh Road, Shivaji cafe center, NRP Road, Inox theatre, Gandhi Nagar, Alankar Center, Lenin Centre. At about 01.00 p.m. election campaign rally of petitioner No.1 reached Singh Nagar, Raghavendra Rao Hotel Center, with more party workers than permitted and with loud sound system, resulted in creating traffic jam. At the same time, other rival two parties, who were coming on the same route on campaigning, reached the same place from opposite direction; on seeing them, petitioner No.1, and his children, who are petitioner Nos.2 and 3, and other party workers raised slogans, which are in the nature of provoking rival groups, caused harm to the public MSM,J Crl.P._3304_2019 2 peace and tranquillity and that the rally of the petitioners caused traffic jam, as such the petitioners violated permission granted by the DCP, (Law and Order-II) dated 07.04.2019.
The main contention of the petitioners is that even if the allegations made in the complaint are taken on its face value, the same do not constitute an offence punishable under Sections 143, 290, 188, 171 (H) read with 149 of I.P.C. The present case is registered against the petitioners only on the ground that the petitioner No.1 is one of the candidates, who is contesting in the elections, thereby the proceedings are liable to be quashed by this Court.
The respondents did not file any counter.
Sri R.Kalyan Chakravarthy, learned counsel for the petitioners, would contend that the very registration of crime for the offence punishable under Section 188 of I.P.C. is a serious illegality as the same is hit by Section 195 (1) (a) (i) of Cr.P.C. and the petitioners did not cause any disturbance to the public peace and tranquillity as they conducted election campaign as per the permission obtained by them and they did not commit any offence, requested to quash the proceedings against the petitioners.
Sri Dushyant Reddy, learned Additional Public Prosecutor for the State, opposed the petition on the ground that when the investigation is not commenced, the Court cannot exercise power under Section 482 of Cr.P.C. except in exceptional circumstances to quash the proceedings, but in the present case, prima facie material is available against the petitioners to proceed further and to investigate into the offences committed by them, requested to dismiss the petition.
MSM,J Crl.P._3304_2019 3 Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether the proceedings in Crime No.126 of 2019 (F.I.R.) on the file of the Station House Officer, A.S.Nagar Police Station are liable to be quashed?
P O I N T:
Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice.
To give effect to any order under Code means, the first class of order, which the section embraces are orders that may be necessary to give effect to any order under this Code. When a Court has authority to make an order, it must also have the power to carry out the order into effect. The power to enforce obedience to MSM,J Crl.P._3304_2019 4 the mandates of the Court necessarily springs from the very existence of the authority to issue the mandates and, if that power is not expressly given by the statute, it must be deemed to be inherent in the Court, vide "Emperor v. Sukhdeo1".
To prevent abuse of the process of any Court, the authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority, so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse in the process of the Court to allow a suitor to litigate over again the same question which has been already decided against him. The High Court would, in the exercise of its inherent jurisdiction, reject an application for the transfer of a criminal case, where such an application based upon the same facts had already been refused. The words "process" is a general word meaning, in effect, anything done by the Court. In exercise of the powers under this section the High Court would be justified to quash the proceedings if it finds that the institution or continuance of criminal proceedings amounts to abuse of the process of the Court or if quashing of those proceedings would otherwise secure the ends of justice. Where there is no material before the Magistrate on the basis of which he can issue process against the accused to stand trial, it will be gross abuse of the process of the Court if the accused is put to trial, hence the proceedings should be quashed at the threshold. Similarly, where it is not shown that there is any abuse of process 1 1930 Lah 465 31 Cr LJ 482 MSM,J Crl.P._3304_2019 5 of the Court, the proceeding will not be quashed. The jurisdiction of the High Court in quashing the complaint or the first information report is very limited. The High Court is justified in quashing the complaint when no offence is made out on the allegations made in the compliant or the documents accompanying it per se.
The words used in under Section 482 of Cr.P.C "or otherwise to secure the ends of justice", the High Court has been given powers under this section, in addition to what it possesses under its Charter and Letters Patent, to interfere in order to secure the ends of justice. If the High Court feels that the ends of justice require that an order should be made in an application, although the application is not contemplated by the Code the High Court will entertain the application and make the necessary orders to secure the ends of justice. The Court while deciding a law point may decide it rightly or wrongly. An application under this section will not lie on the ground that the Court has decided a point of law incorrectly and has resulted in gross injustice to the applicant. Vide "Ramji Singh v. State2". Thus, the inherent powers of the Court can be exercised sparingly in extraordinary circumstances and with great circumspection.
Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: 2 1972 Cr LJ 1545 (A) MSM,J Crl.P._3304_2019 6 In "R.P. Kapur v. State of Punjab3", the Apex Court laid down the following principles:
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;
(iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court 3 AIR 1960 SC 866 MSM,J Crl.P._3304_2019 7 as held by the Apex Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar4"
In "State of Haryana v. Bhajan Lal5" the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no 4 AIR 1990 SC 494 5 1992 Supp (1) SCC 335 MSM,J Crl.P._3304_2019 8 prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Keeping in view the above principles, I would like to examine the case on hand.
The powers of this Court at the stage of F.I.R. are limited and this Court can verify the F.I.R. and other material, if any, produced before the Court and decide whether such allegations would constitute any offence, but this Court cannot appreciate the evidence and cannot record whether the allegations would constitute any specific offence or not.
Undisputedly, investigation in the present case is at the fetus stage, in such case, it is difficult to quash the proceedings as held in "State of Orissa v. Saroj Kumar Sahoo6", wherein the Apex Court held that the inherent powers under Section 482 of Cr.P.C. should not be exercised by the High Court to stifle a legitimate prosecution. The High Court, being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the 6 (2005) 13 SCC 540 MSM,J Crl.P._3304_2019 9 evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. While exercising jurisdiction under Section 482 of the Cr. P.C., it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on record but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
In "Kurukshetra University v. State Of Haryana7", the Supreme Court took a serious view about quashing the proceedings by the High Court while exercising power under Section 482 Cr.P.C and observed as follows:
"It surprises, us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the CrPC, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."
In view of the law declared by the Apex Court in "State of Orissa v. Saroj Kumar Sahoo" and "Kurukshetra University v. 7 AIR 1977 SC 2229 MSM,J Crl.P._3304_2019 10 State Of Haryana" (referred supra) when the investigation is at fetus stage, this Court cannot interfere with the process of investigation and quash the proceedings by exercising power under Section 482 of Cr.P.C.
In "Jehan Singh v. Delhi Administration8" it was held that where at the date of filing the petition under Section 561-A (old Code equivalent to Section 482 of the Code), no charge sheet has been laid and the matter is only at the stage of investigation by police, the Court cannot, in exercise of its inherent jurisdiction under Section 561-A interfere with the statutory powers of the police to investigate into the alleged offence and quash the proceedings.
In the present case, the investigation is at fetus stage. As per the principles culled out from the law declared by various Courts referred above, there is direct interdict on the powers of this Court to interfere with the investigation by exercising power under Section 482 of Cr.P.C.
In "Babubhai Jamnadas Patel v. State of Gujarat9" the Apex Court while referring to the principles laid down in "M.C.Abraham v. State of Maharashtra10" held that that while investigation is in progress, the Court cannot direct the Investigating Agency to submit a report in accord with the Court's own view. In the facts and circumstances of the said case, this Court observed that it was open to the Magistrate, to whom the report is submitted by the Investigating Agency after a full and 8 AIR 1974 SC 1146 9 2009 (3) ACR 3033 (SC) 10 (2003) 2 SCC 649 MSM,J Crl.P._3304_2019 11 complete investigation, to either accept the same or to order a further inquiry. As far as the High Court is concerned, it could give directions for prompt investigation, but it could not direct the Investigating Agency to submit a report, that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the Investigating Agency.
On verification of F.I.R., the allegations made therein are prima facie sufficient to constitute cognizable offence. Therefore, it is difficult to exercise power under Section 482 of Cr.P.C. to quash the proceedings in Crime No.126 of 2019 of A.S.Nagar Police Station, Vijayawada, at this stage.
As per the law declared by the Apex Court in various judgments referred supra, the Court cannot exercise its power to quash the F.I.R. at its inception and more particularly when no investigation is commenced.
In view of my foregoing discussion, I find that it is not a fit case to quash the proceedings, at this stage. Consequently, the petition is liable to be dismissed.
In the result, the criminal petition is dismissed. However, it is left open to the petitioners to renew their request at appropriate stage.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 05.11.2020 Ksp