G Ramesh Naidu A5 vs Chittem Dattatreya Reddy on 10 August, 2022

[Cites 39, Cited by 0]

Andhra Pradesh High Court - Amravati

G Ramesh Naidu A5 vs Chittem Dattatreya Reddy on 10 August, 2022

Bench: K.Sreenivasa Reddy

   THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

           CRIMINALPETITION No.8179 of 2018
ORDER:

This Criminal Petition is filed to quash the proceedings in S.C.No.421 of 2016 on the file of the Court of the VI Additional Sessions Judge, Anantapur at Gooty.

2. On a report given, crime was registered against the petitioner and 15 others for the offences punishable under Sections 147, 148, 324, 307, 302 r/w 149 IPC and 120-B IPC. After the investigation the police filed the charge sheet against A1 to A4 and A6 to A16 and deleted A5 from the charge sheet and the same is numbered as P.R.C.No.18 of 2015 on the file of the Additional Judicial Magistrate of First Class Court, Gooty. Thereafter objections have been filed by Chittemreddy Indumathi (L.W.1), Chittem Dattatreya Reddy (L.W.9) and Thota Venkata Siva Prasad Reddy (L.W.10) before the Judicial Magistrate of First Class, Gooty in respect of deletion of the name of the petitioner from the charge sheet. By an order dated 23.12.2015, the learned Magistrate passed the following order.

"Perused the protest petition and also citations relied by the counsel for the de facto complainant and also 161 statements of L.W.1 to L.W.12. Considering the same, this Court found a prima facie case is made out against A.5 by name Ramesh Naidu as if against remaining accused as mentioned in the charge sheet for the offences under Sections 147, 148, 324, 307, 302 r/w 149 IPC and 120(B) IPC.

Hence the case is taken on file as P.R.C.No.18 of 2015 under Sections 147, 148, 324, 307, 302 r/w 149 IPC and 120(B) IPC against Accused No.1 to 16, accordingly issue summons to A.5. Call on 13.1.2016... "

In pursuance of the same, the learned Magistrate included the name of the petitioner as Accused No.5. After committal to the Sessions Court, the case is numbered as S.C.No.421 of 2016 on the file of the VI Additional Sessions Judge, Anantapur at Gooty.

3. Brief facts of the case, as per the charge-sheet, are as follows;

One Chittem Vijaya Bhaskar Reddy (hereinafter referred to as „the deceased‟) was the resident of Appecherla Village of Peddavadugur Mandal, Anantapuram District. He was previously in Congress party and at the time of Assembly Elections, during 2014,he joined YSR Congress Party. He was elected as President for Single Window Cooperative Society, Krishtipadu Village. A1 to A16 belong to Telugu Desam Party. There is political rivalry between the deceased and the Accused persons to capture the power and it is from the last few years. When the TDP formed the Government and since the deceased was continuing as President of Single Window Cooperative Society, all the accused, being unable to digest the fact that the deceased was continuing as President of Single Window Cooperative Society, Krishtipadu Village, tried to move „no confidence motion‟ against the deceased on 3 09.02.2015. Due to various reasons, it was postponed and finally the officials of the Cooperative Society granted stay against such „no confidence motion‟. Therefore, all the accused planned to get rid of the deceased from the post of Society President. The General Body Meeting of the Society was scheduled to be held on 31.3.2015 and the same was learnt by A1 and others and they all hatched a plan to eliminate him. In furtherance of their common intention, all the accused joined together and came to office of Cooperative Society with sticks in their vehicles and waiting for the deceased. At about 10.00 a.m., on that day of 31.03.2015, the deceased reached Cooperative Society Office, Krishtipadu to attend General Body Meeting along with Chikkem Jayarami Reddy (L.W.5), Chittem Dattatreya Reddy (L.W.9), Thota Venkata Siva Prasad Reddy (L.W.10), Chikkem Ranga Reddy (L.W.11) and Chittem Virupaksha Reddy (L.W.12). At about 10.30 a.m., A2 and A4 went to the meeting and informed the deceased that one of the Directors by name Gopal Reddy of Kadaraguttapalli Village died and to enter the same in Minutes Book and send the proposals. The deceased replied to them that it was not under his purview. Thereby a wordy altercation took place between A2 and the deceased. In the melee, the deceased pushed A2 whereby A2 dashed against a wall and received an injury. Then A1, A3, A5 to A16 brought sticks from Bolero vehicle and proceeded towards the deceased. Then A1, A2, A4 attacked the deceased and that A4 beat on the back of the deceased with a stick and A1 beat 4 the deceased with the stick on the left side of the head and that A2 severely beat the deceased on his head with the stick, whereby the deceased sustained bleeding injury to his head. Further, A3, A7 and A12 attacked the deceased and beat him indiscriminately. Chittem Dattatreya Reddy (L.W.9), Thota Venkata Siva Prasad Reddy, (L.W.10), Chikkem Ranga Reddy (L.W.11) and Chittem Virupakshi Reddy (L.W.12) tried to intervene, but they were attacked with sticks by A9 to A16 and caused injuries. The deceased since sustained serious injury to his head, the brain matter came out and he died on the spot in a pool of blood.

On the report given by Chittem Dattatreya Reddy (L.W.9), the Sub-Inspector of Police, Peddavadugur Police Station (L.W.19) registered a case in Crime No.31 of 2015 under Sections 147, 148, 324, 302 r/w 149 IPC and handed over investigation to the Inspector of Police, Pamidi Circle (L.W.20). The Investigating Officer arrested A1 to A4 and A6 to A16 on 07.4.2015 at Konduru Cross Roads and recorded their confession statements. He seized Bolero Vehicle, 5 Motor cycles and also 8 sticks which were used in the commission of offences. He also seized blood stained clothes from the accused and on completion of investigation, he filed the charge sheet.

4. Learned Senior Counsel Sri P. Veera Reddy, appearing for the petitioner contended that the learned Magistrate ought not to have summoned petitioner/A5 for the alleged offences, for which cognizance was taken basing on 5 the material. It is contended by the learned Senior Counsel appearing for the petitioner that the learned Magistrate while taking cognizance of the offences against the petitioner did not pass a reasoned order. It is further contended that during the course of investigation, the police examined the witnesses and had come to the conclusion that the petitioner is not at scene of offence and in fact he was at Hyderabad at relevant point of time. The police after thorough investigation and basing on the material on record, including the documentary evidence, had come to a conclusion that the petitioner has been falsely implicated in the case. Learned Senior Counsel further strenuously contended that the learned Magistrate ought to have referred to the report of the police and considered the reason as to why the police deleted the name of the petitioner from being arrayed an accused. It is also contended by the learned Senior Counsel for the petitioner that the learned Magistrate had taken cognizance of the offences even against the petitioner only on the protest petition filed by the de facto complainant and two others. It is thus contended by the learned Senior Counsel that the learned Magistrate did not follow the procedure contemplated under the law, especially when adding of an accused is an extraordinary power given to the Court, which should be exercised very sparingly.

5. On the contrary, the learned counsel for the 1st respondent submitted that the petitioner has not raised any objection when the cognizance has been taken and 6 thereafter when the case has been committed to the Court of Session and even after the same has been numbered as S.C.No.421 of 2016 on the file of the Court of the VI Additional Sessions Judge, Anantapur at Gooty and thus the petitioner had come up at a belated stage asking for quashing of the proceedings basing on the order passed by the learned Magistrate in taking cognizance of the offences. Thus, it is contended that there is absolutely no explanation as to why along delay has taken place.

6. To support the said contention, the learned counsel for the 1strespondent relied upon the judgment of Hon‟ble Supreme Court in Hardeep Singh Vs State Of Punjab &Ors1, wherein it is held, "In PyareLalBhargava v. The State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word „appear‟. The court held that the appropriate meaning of the word „appears‟ is „seems‟. It imports a lesser degree of probability than proof. In Ram Singh &Ors. v. Ram Niwas&Anr., (2009) 14 SCC 25, a two-Judge Bench of this Court was again required to examine the importance of the word „appear‟ as appearing in the Section. The Court held that for the fulfilment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a 1 (2014 3 Supreme Court Cases 92 7 satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case.

88. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused.

Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judge Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

89. In Rajendra Singh (Supra), the Court observed:

"Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."

90. In Mohd. Shafi (Supra), this Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.

91. In Sarabjit Singh &Anr. v. State of Punjab &Anr., AIR 2009 SC 2792, while explaining the scope of Section 319 Cr.P.C., a two-Judge Bench of this Court observed:

"....For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned......Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied." (Emphasis added) "

7. Heard. Perused the record.

8. Sections 200 and 202 Cr.P.C. read as follows;

200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them."

Section 202 Cr.P.C. reads as follows:

202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-

section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

9. It is settled law that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint do not disclose the commission of an offence. It is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If, on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and that forwarding of the complaint to the police for investigation under Section 156(3) Cr.P.C. will be conducive to do justice and save the 11 valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative for taking cognizance of the offence for himself.

Another question that crops up for consideration is with regard to "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190 Cr.P.C. From the scheme of the Code, the content and marginal heading of Section 190 Cr.P.C. and the caption of Chapter XIV under which Sections 190 Cr.P.C. to 199 Cr.P.C. occur, it is apparent that a case is instituted in a Court, only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are contemplated in clauses (a), (b) and (c) of Section 190 (1) Cr.P.C. Broadly speaking, when, on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 Cr.P.C. and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190 (1) (a) Cr.P.C. It is the total discretion of the learned Magistrate either to proceed under Chapter XV or exercise his discretion in referring the case, for the purpose of investigation by the police under Section 156 (3)Cr.P.C. In the latter case, it can be safely said that he cannot be said to have taken cognizance of any offence. 12

10. A question that arises for consideration is whether the Magistrate can straight away take cognizance on the objections filed or accepts the final report submitted by the police?

11. The question that falls for determination is not a new or extraordinary one as this question has cropped up time and again before this Court. What is the course that is available to the learned Magistrate in a situation where the police submits final report under Section 173 (3) Cr.P.C. or the final report submitted by the investigating agency stating that the case is not made out, on account of lack of evidence or for any other reason.

12. This Court has perused the entire material on record. The police filed charge sheet stating that the accused Nos.1 to 4 and 6 to 16 voluntarily confessed about their participation in the offence and further stated that basing on their confession, vehicles and sticks said to have been used for commission of the offenses have been seized. There is absolutely no explanation offered as to how the name of the petitioner has been deleted from the charge sheet and there is no reasoning that has been given by the police. Thereafter the de facto complainant and two others have filed objections for deleting the name of A5/the petitioner herein by the police. This Court perused the statement of L.W.1-Chittemreddy Indumati and injured witnesses L.Ws. 9 to 11-Chittem Dattatreya Reddy, Thota Venkata Siva Prasad Reddy and Chikken Ranga Reddy, wherein they categorically stated that 13 the petitioner was present at the scene of offence and he was armed with sticks. All the eye witnesses and also the injured witnesses have categorically stated before the Investigating Officer about the participation of the petitioner herein in the crime. When once the injured witnesses speak to the fact of the presence of the petitioner at the scene of offence, there is no reason as to how the police have come to a conclusion that no case is made out against the petitioner herein/A.5 and deleted the name of the petitioner.

13. Basing on the objections made by the de facto complainant and two others, the learned Magistrate has passed an order stating that he perused the Protest Petition and also citations relied upon by the learned counsel for the de facto complainant and he also perused the 161 Cr.P.C. statements of L.Ws 1 to 12 and after considering the same, he found that a prima facie case is made out against the petitioner herein as well as against the remaining accused as mentioned in the charge sheet for the offences punishable under Sections 147, 148, 324, 307, 302 r/w 149 IPC and 120-B IPC. In view of the said reason, the learned Magistrate took the same on to file and registered the case by numbering it as PRC 18 of 2015.

14. Learned counsel for the petitioner relied upon a judgment of Allahabad High Court in Rishipal And 10 OrsVs State Of U.P. And Anr. It is held therein 14 "The counsel for the applicant has relied upon in Paragraph- 17 of the judgment of the Apex Court in the case of Fakhruddin Ahmad vs. State of Uttranchal and another (2008) 17 SCC 157 in support of his submission that the order of the court is non-speaking and ill-considered wherein in Paragraph 17 the Apex Court has stated:-

"17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."

6. The counsel for the applicants has relied upon the judgment of the Apex Court in the case of HDFC Securities Limited and others vs. State of Maharashtra and another, wherein the Apex Court has held that:

"16. We are of the considered opinion that in the present case a fact finding investigation was directed by the impugned order. Consequently, FIR was registered against appellants No.2 to 4 and against RM (Vinod Kopar). The accused under Indian 15 Criminal Legal System, unless proved guilty shall always be given a reasonable space and liberty to defend himself in accordance with the law. Further, it is always expected from a person accused of an offence pleading not guilty that he shall co-operate and participate in criminal proceedings or proceedings of that nature before a court of law, or other Tribunal before whom he may be accused of an ''offence' as defined in Section 3(38) of the General Clauses Act, i.e., an act punishable under the Penal Code or any special or local law. At the same time, courts, taking cognizance of the offence or conducting a trial while issuing any order, are expected to apply their mind and the order must be a well reasoned one."

9. Finally in support of above contention reliance on this court's judgment in the case of Hari Ram vs. U.P. and another 2016 Lawsuit (All) 1359 has also been made wherein paragraph 28 of this court has held:

"28. Looking to exposition of law, discussed above, I find that in the present case Magistrate has not referred to any material placed before him or collected by Investigating Officer. Instead it has rejected final report on the basis of facts stated in Protest Petition and thereafter relying on the affidavits filed before him along with Protest Petition, proceeded to issue notice.

The affidavits would not amount to a statement recorded by Magistrate under Section200 and 202 Cr.P.C.Magistrat e has not given any reason for rejecting Police report and nothing has been said in this regard except that in the light of 16 affidavits placed before him along with Protest Petition, he finds that final report is liable to be rejected and accused would be summoned. This approach on the part of Magistrate, I find contrary to what has been laid down in the above authorities and the same cannot be sustained."

17. In the present case he only perused the protest petition and affidavits accompanying the same and no other material which was alien in nature. In the case laws relied upon by the counsel for the applicant, the consistent view is that the order summoning the accused, after ignoring the conclusions of Investigating Officer, should show application of mind by Magistrate before issuing summons and his satisfaction should be evident from his order summoning the accused. The counsel for the opposite party no. 2 has relied upon the authorities herein noted above and has submitted that no such satisfaction is required to be recorded by Magistrate before issuing summons to the accused although he is required to apply his mind.

19. In paragraph 8 in the case of Bhushan Kumar (Supra) it has been stated that under Section 190 of the code, it is the application of judicial mind to the averments in the complaint that constitute cognizance. In paragraph 10, it has been stated that Section 204 of the code does not mandates the Magistrate to explicitly states the reason for issuance of summons, it clearly states that if in the opinion of Magistrate taking cognizance of an offence, there is sufficient ground for proceedings then the summons may be issued.

24. From the consideration of all the authorities of the Apex Court cited on behalf of both the parties, it is clear that the minimum requirement for the Magistrate at the time of issuing summons is to record his satisfaction that sufficient material exist on record, collected by the investigating officer, forming prima facie opinion for proceeding against the accused and this opinion or satisfaction should be reflected, in short only, as per requirement of Bhushan Kumar (Supra) from the summoning order passed by the Magistrate. In the present case the following order of summoning has been passed......"

15. Learned counsel for the petitioner relied upon the above judgment and stated that the minimum requirement for the Magistrate at the time of issuing summons is to record his satisfaction that sufficient material is existing on record, collected by the Investigating Officer. Forming prima facie opinion for proceeding against the accused and others and this opinion of satisfaction should be reflected atleast in short is the requirement as per Hon‟ble Court‟s judgment in Bhushan Kumar Vs. State (NCT of Delhi)2,before issuing summons by the Magistrate. Stating so, learned counsel for the petitioner states that in the present case, the learned Magistrate has not followed the procedure as contemplated in Bhushan Kumar's case (supra).

2 AIR 2012 SC 1747 18

16. He also relied upon the judgment of Hon‟bleSupreme Court in VasantiDubeyVs State of Madhya Pradesh3, wherein it is held "However, the learned single Judge completely missed the ratio laid down in the case of Abhinandan Jha (supra) which had been relied upon by the learned single Judge of the High Court on an earlier occasion also when the order of the Special Judge refusing to accept closure report and directing submission of charge-sheet was quashed and the entire legal position was summed up in unequivocal terms as follows:-

"There is no power, expressly or impliedly conferred under the Code, on a Magistrate to call upon the police to submit a charge- sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistrate and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view."

This position has been further reiterated and reinforced in a recent judgment of this Court delivered in the matter of Ram Naresh Prasad vs. State of Jharkhand2, wherein it has been held that when the police submitted a final report of investigation of the case which in colloquial term is called closure report, the magistrate cannot direct 3 2012 (2) SCC 731 19 the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down 2 (2009) 11 SCC 299 under Section 190 read with Section 156 of the Cr.P.C. itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in the matter of Bains vs. State3, wherein their lordships have summarised the position as follows:-

"1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;

2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps :

"i. If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.

ii. He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such (3 AIR 1980 SC 1883 = 1980 (4) SCC 631) enquiry take action under Section

203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant 20 or complainant, the magistrate cannot direct the police to straightway submit the charge- sheet as was the view expressed in the matter of Abhinandan Jha (supra) which was relied upon in the matter of Ram Naresh Prasad (supra)."

14. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the magistrate can ignore the same and can take cognizance on applying his mind independently to the case.

But in that situation, he has two options (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section

203. He is also entitled to take cognizance under Section 190Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge- sheet by the police.

18. It is no doubt possible to contend that at the stage of taking cognizance or refusing to take cognizance, only prima facie case has to be seen by the Court. But the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on Police report which is registered on the basis of First Information Report cannot be allowed to follow the procedure in a complaint case.

A case based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on Police report. While 21 in a case based on Police report, the Court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the F.I.R., a complaint case requires an enquiry by the Magistrate under Section 200Cr.P.C. if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case, he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200Cr.P.C. But, he cannot exercise the fourth option of directing the Police to submit a charge-sheet as such a course is clearly not envisaged under the Cr.P.C. and more so in a complaint case. As already stated, this position can be clearly deduced from the catena of decisions including those referred to hereinbefore but needs to be reinstated as time and again this magisterial error reaches up to this Court for rectification by judicial intervention."

17. Learned counsel for the petitioner has relied upon judgment of Hon‟ble Supreme Court in Dharam Pal &Ors vs State Of Haryana & Anr 4 , where it is held As far as the first question is concerned, we are unable to accept the submissions made by Mr.Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the 2014 (3) Supreme Court Cases 306 4 22 case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same.

23. The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(3) of the Code, he was helpless in taking recourse to such a course of action while the Session Judge was also unable to proceed against 23 any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross- examined on behalf of the accused.

18. He also relied on the judgment of Hon‟ble Apex Court in Nupur TalwarVs. C.B.I. Delhi and another5 "26. Reference in this connection may be made to a three Judge Bench decision of this Court in the case of M/s. India Carat Private Ltd. Vs. State of Karnataka &Anr. (1989) 2 SCC 132. Explaining the relevant principles in paragraphs 16, Justice Natarajan, speaking for the unanimous three Judge Bench, explained the position so succinctly that we would rather quote the observation: as under:-

"The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently 5 2012 (11) SCC 465 24 apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused..."

19. This Court, on elaborate hearing and perusing the judgments cited supra, concludes that the Magistrate has ample power to agree or to disagree with the final report that may be filed by the police authorities under Section 173 (2) and can proceed against the accused and also persons not named in the police report. The Magistrate has a role to play while committing a case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173 (2) of Cr.P.C. In the event the Magistrate disagrees with the police report, he has two options; one is to act on the basis of protest petition that was filed or he may, while disagreeing with the police report, issue process/ summons to the accused. If the Magistrate satisfied prima facie that a case has been made out to proceed against the persons, who are not named in the charge sheet, he may proceed to try the said persons or if he is satisfied that the case has been made out, which is triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

20. Considering the settled principles of law, this Court is of the view that the learned Magistrate has taken the cognizance of the offences and summoned the petitioner herein/A.5 in accordance with law after perusing the 25 statements of the injured witnesses and the objections filed by the de facto complainant and others and has passed impugned order by following due procedure. Hence the said order does not call for any interference.

21. In view of the same, this Criminal Petition is dismissed.

As a sequel, all the pending miscellaneous applications shall stand closed.

_________________________________ JUSTICE K. SREENIVASA REDDY Date:10. 08.2022 GR/DRK 26 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINALPETITION No.8179 of 2018 Date: 10.08.2022 GR/DRK

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Andhra Pradesh High Court - Amravati