Andhra HC (Pre-Telangana)
Y. Vasudeva Rao And Anr. vs State Of A.P. And Anr. on 7 June, 2005
Equivalent citations: 2005(2)ALD(CRI)568, 2005CRILJ3774
ORDER V.V.S. Rao, J.
1. The petitioners are accused Nos. 1 and 2 in P. R. C. No. 32 of 2003 on the file of the Court of the X Metropolitan Magistrate, Secunderabad. They are alleged to have committed an offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act). In this petition under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) they seek quashing of the said P.R.C. Be it also noted, the petitioners earlier filed Criminal Petition No. 3019 of 2001 to quash the case when the same was at the stage of investigation in crime No 238 of 2001 of P. S., Chilakalguda, Secunderabad, and which was registered on an endorsement made by the Court of X Metropolitan Magistrate, Secunderabad. Be it also noted, by an order dated 12-2-2002, this Court dismissed the Criminal Petition by reasoned order. Be it also further noted that after the dismissal of the Criminal Petition referred to herein, the X Metropolitan Magistrate took cognizance of the case on 19-11-2003. Challenging the same, the petitioners filed Criminal Revision Case being Cri. R. C. No. 1941 of 2003. By order dated 12-2-2004, this Court dismissed the said Criminal Revision case by reasoned order. Aggrieved by the same, the petitioners filed S.L.P. (Crl.) No. 2412 of 2004 and the same was dismissed by the Supreme Court on 7-7-2004. Thereafter, on 18-11-2004 petitioners filed the present Criminal Petition yet again for quashing the criminal case, which is at P.R.C. i.e., committal.
2. In the background, briefly noticed hereinabove, nothing would have been a valid cause of action for the petitioners to again approach this Court under Section 482 of Cr.P.C. Nonetheless, the learned Counsel for the petitioners, Sri V. Pattabhai, made strenuous efforts presumably for the reason that the first petitioner is an Advocate and the second petitioner is the wife of the first petitioner. Though aware of the effort put in by the learned Counsel for the petitioners to extricate a member of his peer group from a serious criminal proceeding, this Court, however, is not able to agree with the various submissions made by the learned Counsel for the petitioners. Vehemence is not always a sign of valour nor valour always nips discretion at the stage of bud! If persistent vehemence in a game played according to forensic rules exceeds the limit, it gives place to abuse of process of Court. That is what is precisely happened in this case as the accused persons filed the present petition in gross abuse of process of Court by ignoring various salient provisions of Cr.P.C., and two well considered judgments of this Court earlier referred to hereinabove.
3. Some more facts, albeit, in brief are as follows. The second respondent herein filed a complaint on the file of the Court of the X Metropolitan Magistrate, Secunderabad. He alleged that the petitioners approached him for a loan of Rs. 5,00,000/- (Rupees five lakh only) in connection with their real estate business and de facto complainant paid the amount after obtaining promissory note wherein the petitioners agreed to pay the loan amount with 24 per cent interest per annum. The petitioners committed default. When the complainant demanded the payment, the first petitioner issued a cheque for an amount of Rs. 5,00,000/-. The same was dishonoured by the bank. On 18-5-2001, the complainant approached the first petitioner at the residence of the latter and demanded the payment. The petitioners in stead of paying the amount, necked the complainant out of the house and abused him in filthy language in the name of his caste (Erukala) and subjected the complainant to agony and humiliation and therefore, the petitioners committed an offence punishable under Section 3(1)(x) of the Act.
4. The learned Magistrate forwarded the private complaint under Section 156(3) of Cr.P.C., to P.S., Chilkalguda, Secunderabad as crime No. 238 of 2001. The petitioners immediately thereafter filed Criminal Petition No. 3019 of 2001 under Section 482 of Cr.P.C., praying this Court to quash the crime. They contended that the offence under Section 3(1)(x) of the Act is not attracted since the offence was not committed within the place in public view and that the complaint of the second respondent is false and frivolous. This Court dismissed the petition as noticed herein, placing reliance on the decision of this Court in Bharat Petroleum Corporation Limited v. Union of India, 2000 (5) Andh LT 602 : 2000 (5) Andh LD 566 and Goura Gobinda Das v. State of Orissa, 2000 Cri LJ 1978. This Court also referred to the statements of P.Ws. 1 to 3 in recording a prima facie finding that the offence was indeed committed "in a place within the public view".
5. The police completed investigation and submitted a final report to the effect that the complaint is of civil nature. The second respondent filed the protest petition under Section 191(b) read with Section 202 of Cr.P.C. The learned Magistrate, after considering the final report and the material on record, passed the following order.
Perused the final report, protest petition, complaint and sworn statement of the complainant and his two witnesses. Originally this matter which was referred Under Section 156(3), Cr.P.C. was investigated by A.C.P. Gopalapuram division and he filed a final report stating that it is a civil nature. Then the complainant filed a protest petition and he was permitted to participate in an enquiry Under Section 202, Cr.P.C. In the course of 202 Cr.P.C., enquiry, he himself had given statement and got recorded the statements of his two witnesses.
If the contents of the complaint, sworn statements are taken on its face value, it is substantiate to say that this accused had scolded the complainant as 'Erikala Naa Koduka' and it is sufficient to say that there is a prima facie offence Under Section 3(1)(x) of S.C. and S.T. (P.O.A.) Act, 1989.
Hence, the case is taken on file against A.I and A. 2 for the offence Under Section 3(1)(x) of S.C. & S.T. (P.O.A.) Act. Since the matter is triable by the Court of Session, issue NBWs on payment of batta.
6. When the learned X Metropolitan Magistrate took cognizance of the case and ordered non-bailable warrants to the petitioners, they filed Criminal Revision Case being Crl. R. C. No. 1941 of 2002 contending that the action of the learned Magistrate in taking cognizance of the offence ignoring the investigation report submitted by the Assistant Commissioner of Police was not proper. This Court by order dated 12-2-2004 dismissed the Criminal Revision case. As noticed above, the petitioners' yet another effort before the highest Court of the land in filing S.L.P. (Crl.) No. 2412 of 2004 was also unsuccessful. The Supreme Court dismissed S.L.P. on 7-7-2004 and the petitioners thereafter filed the present Criminal Petition on 18-11-2004 when the case was registered as P.R.C. No. 32 of 2003.
7. The learned Counsel for the petitioners submits that the dismissal of earlier Criminal Petition being Crl.P. No. 3019 of 2001 is not a bar for filing second petition under Section 482 of Cr.P.C., for quashing the criminal case. Secondly, he would urge that there is no basis to infer that the offence under Section 3(1)(x) of the Act was committed in a place within public view and therefore any criminal prosecution for the said offence would result in miscarriage of justice as the same amounts to abuse of process of law. It is his last submission that the second respondent (de facto complainant) is not a person belonging to scheduled tribe and therefore the provisions of the Act are not attracted. The learned Counsel also raised two other contentions. According to him, the learned Magistrate was not correct in taking cognizance of the offence without passing a reasoned order. According to him, if the Magistrate takes cognizance without such order, the same would amount to non-application of mind. When the police submitted report favouring dismissal of the case, the learned Magistrate ought not have taken cognizance of the offence.
8. The learned Counsel for the other side submits that whether or not the second respondent belongs to scheduled tribe or not is a question, which has to be gone into at the time of trial and the same cannot be a ground for quashing the complaint when an offence under Section 3(1)(x) of the Act is made out. He placed reliance on Moganti Srinivasa Rao v. State of A. P., 2003 (1) Andh LD (Crl) 80. He also submits that even when the police submit a report to the effect that no crime is made out or is a mistake of fact, the Magistrate can sill take cognizance having regard to the material on record. He invites the attention of this Court to the decision of the Supreme Court in Jagdish Ram v. State of Rajasthan, . According to the learned Counsel, when the petitioners committed offence under Section 3(1)(x) of the Act, there were witnesses who saw the same and therefore the offence was committed "in a place within public view".
9. As observed above, the first petitioner is a practising lawyer, who is it appears bent upon nibbing the prosecution at the stage of bud. Repeatedly he is filing petitions under Section 482 of Cr.P.C., as well as Section 397/401, Cr.P.C., raising one ground or the other. When he filed the petition when the crime was registered and when he filed a revision case when the Magistrate took cognizance of the offence, this Court dismissed the plea/pleas of the petitioners by giving elaborate reasons. In that view of the matter, this petition, this Court reiterates at the cost of repetition, is an abuse of process of Court.
10. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, the Supreme Court again considered the scope of power of this Court under Section 482 of Cr.P.C., to quash criminal prosecution. After referring to R.P. Kapur v. State of Punjab, Janata Dal v. H.S. Chowdhary and Stale of Karnataka v. M. Devendrappa, the Supreme Court laid down as under.
Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power, which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers of Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
11. This case certainly does not fall in any of the conditionalities for quashing proceedings in P.R.C. No. 32 of 2003 on the file of the Court of the X Metropolitan Magistrate, Secunderabad. The submission of the learned Counsel that the second respondent does not belong to scheduled tribe and therefore the provisions of the Act are not attracted is a question of fact, which cannot be decided in the proceedings under Section 482 of Cr.P.C. This is well settled.
12. In the petitioners who were accused in crime No. 10 of 2002 of P. S., Gannavaram, under Section 3(1)(x) of the Act filed writ petition under Article 226 of the Constitution of India for quashing the crime, inter alia on the ground that the complainant does not belong to scheduled tribe. This Court while dismissing the writ petition the said contention was repelled and observed.
As rightly contended by the learned Counsel for the petitioners, there would be some doubt as to the social status of a complainant who alleges the commission of offences by persons not belonging to Scheduled Castes or Scheduled Tribes. However strong the allegations may be, that the complainant does not belong to Scheduled Castes or Scheduled Tribe, but this Court in exercise of its power under Article 226 of the Constitution of India cannot go into such allegations for such allegations have to await the regular criminal trial.
It is well settled that ordinarily this Court would not exercise its jurisdiction under Article 226 of the Constitution of India and quash the F.I.R., when the F.I.R., discloses the ingredients of an offence. The High Court cannot look for the evidence in the complaint and quash the F.I.R. What, in effect, the learned Counsel for the petitioners would contend is that there is no proof to show that the second respondent belongs to Scheduled Tribe, and on the contrary there is evidence to show that he belongs to 'Adi Andhra,' a Christian community, falling under Group 'C' of the notified Backward Classes. This may be a valid ground of defence during the regular criminal trial, but it cannot be a ground for quashing the F.I.R.
13. Further, the subject of issue of community certificates in Andhra Pradesh is governed by A.P. (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of issue of Community Certificates Act, 1993. Under the said Act, elaborate procedure is prescribed by law to be followed by the authorities at the time of issue of community certificates as well as at the time of issue of orders cancelling such community certificates. On a mere surmise or based on the evidence produced by the accused persons under Section 3(1)(x) of the Act, the Court cannot quash the criminal case.
14. The submission with regard to the non-application of mind of the learned Magistrate while taking cognizance is misconceived. This aspect of the matter was discussed by my learned brother, Hon'ble Sri Justice V. Eswaraiah while dismissing the Cri. R.C. No. 1941 of 2003. Further, as held by the Supreme Court in Jagdish Ram v. State of Rajasthan (2004 Cri LJ 5008) (supra), even if the police filed a report under Section 173(1) and (2) of Cr. P.C., informing the commission of no crime or a mistake of fact, it is still open to the learned Magistrate to take cognizance of offence if the material on record makes out a prima facie case.
15. The last submission of the learned Counsel also does not merit any consideration. It is a submission that even if the contents of the complaint are taken to be true, the offence was not committed "in a place within public view" and, therefore, prosecution of the petitioners would be abuse of process of Court. There are three judgments of this Court on this aspect. These are in J. Sumana v. Endluri Aseerwadamma, 2003 (1) Andh LD (Cri) 252; K. Padma Reddy v. Station House Officer, Bellampalli, 2003 (2) Andh LD (Cri) 421 : (2004 Cri LJ 503) and Bharat Petroleum Corporation Limited v. Union of India, . There are also two unreported judgments of this Court on this aspect, one being the judgment of my learned brother Hon'ble Sri Justice. T. Ch. Surya Rao in Crl. P. No. 3019 of 2001, dated 12-2-2002 and the other being the judgment delivered by me in Crl. P. No. 6099 of 2004. In the judgment delivered by me, after referring to all the judgments except the judgment in B.P.C.L. case (supra), I observed as under :
A number of cases under Section 482 of Cr. P.C., are being filed for quashing the case at the stage of investigation and/or at the stage of prosecution before the special Court. Whenever an offence under Section 3(1)(x) of the Act is alleged, one of the submissions is that the alleged insult or intimidation is not in a place within the public view and, therefore, the case is quashed on that ground. The other usual grounds urged are that the complainant is not a person belonging to Scheduled Caste or Scheduled Tribe, that the complaint is filed to harass and to blackmail the accused in relation to a previous dispute and that such a complaint is filed to take vengeance against the accused. An answer to all these grounds, if it is to be in favour of the accused, requires further answers to other questions, as to what happened, when happened, how happened and why it happened. There can be no answer to these questions without there being full evidence before the Court. No one can arrive at a definite conclusion or plausible conclusion based on some hazy and vague material brought by the accused for evaluation by the Court. It would, therefore be hazardous for this Court to venture into arena of conjecture to find answers. The Court should be cautious not to be swayed by the rhetoric presented by the accused, which is presented more often than not in every case for quashing.
16. Dealing with Section 3(1)(x) of Act and the phrase "... in any place within the public view...", I held as under :
Therefore, the phrase 'in a place within the public view' may be taken as a place where ordinarily the public visit for some purpose or other than with uninterrupted regularity though not continuously. Any place where a Government office is located, any market, a place of public entertainment and the like, where people are expected to go and are invited is a place 'within the public view.' An office or an office room where the head of the office sits is also a place within the public view but the private ante chamber of such officer cannot be treated as a place within the public view because except the personal servants of the officer, nobody can enter the private chambers. Similarly, an officer's house is not a place within the public view. If a person opens any shop -- be it for selling services or be it for selling feed for prawn culture; opens such a shop with an implied invitation to the public to visit the shop for purchasing the feed sold, such a shop must be given a public character and is certainly a place within public view.
17. The Court cannot ignore that the Legislature uses the words "...in any place within public view..." and not the term "public place" or the term only "public view." Therefore, one has to get the meaning of the words "place within the public view." Having regard to the language used in Section 3(1)(x) of the Act, it is reasonable to hold that an offence of insulting and humiliating a member belonging to Scheduled Castes/Scheduled Tribe in any place where public view such incident (whether one person or more persons), is an offence under the Act. Dealing with this aspect of the matter in Crl. P. No. 3019 of 2001, my learned brother Hon'ble Sri Justice T. Ch. Surya Rao held as under :
Turning to the facts of the instant case, it has been alleged in the First Information Report that P.Ws. 1 to 3 were present when the offence is said to have been perpetrated. Therefore, it cannot be concluded on the face of the allegations made in the complaint that the offence in this case is said to have been perpetrated not to the gaze of the public. Again that becomes the subject-matter of enquiry and is got to be decided on the evidence adduced on either side. Therefore, the contention that the provision of Section 3(1)(x) of the Act are not attracted, cannot be countenanced.
18. Whether the petition filed under Section 482 of Cr. P.C., at the stage of F.I.R., or at the stage of P.R.C., the above observations of this Court cannot be ignored. Further, whether a member belonging to SC/ST was humiliated and insulted by the accused is a matter of evidence and the same cannot be ordinarily enquired into in a petition for quashing the criminal prosecution. Viewed from any angle, this criminal petition is devoid of merit.
19. In the result, the criminal petition, for the above reasons, is dismissed.