Telangana High Court
Mallapally Savari vs State Of Telangana And Another on 24 August, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL REVISION CASE No.283 OF 2021
ORDER:
Heard Mr. K.B. Narasimhulu, learned counsel for the petitioner, Mr. P. Vamsheedhar Reddy, learned counsel for respondent No.2 and learned Public Prosecutor appearing for respondentNo.1 - State.
2. This Criminal Revision Case is filed challenging the order dated 17.03.2021 Crl.M.P. No.555 of 2021 in Cr.No.89 of 2018 of Gattu Police Station passed by the learned Additional Judicial Magistrate of First Class at Gadwal.
3. FACTS OF THE CASE:
i) On the complaint lodged by respondent No.2 herein, the Police, Gattu (M) Police Station, Jogulamba - Gadwal District, have registered a case in Crime No.89 of 2018 on 21.08.2018 against the petitioner herein and 2 others for the offence under Section - 302 read with 34 of IPC.
ii) In the said complaint, respondent No.2 herein has alleged that there is a quarrel in between his father and his relatives including the petitioner herein over the lease land of David Master about three 2 KL,J Crl.R.C. No.283 of 2021 (03) months back and, therefore, he has suspected that keeping the said quarrel in mind, they might have killed his father by beating with sticks.
iii) The Investigating Officer in Crime No.89 of 2018 has recorded the statements of respondent No.2 as LW.1, LW.2, wife and younger brother of the deceased as LWs.3 and 4 and the circumstantial witnesses as LWs.5 to 10. On considering their statements recorded under Section - 161 of Cr.P.C., the Investigating Officer has laid the charge sheet against accused Nos.1 to 7 for the offences under Sections - 302 and 120B read with 34 of IPC. As the evidence is not establishing the offence against the petitioner herein, his name has not been included in the charge sheet.
iv) Feeling aggrieved by the same, respondent No.2 herein had filed a protest petition vide Crl.M.P. No.555 of 2021 contending that though the name of the petitioner herein has been specifically mentioned in the complaint, dated 21.08.2018 and the entire incident was witnessed by the Villagers, the police misconceived the evidence and deleted the name of the petitioner herein from the charge sheet. 3
KL,J Crl.R.C. No.283 of 2021
v) The learned Magistrate has recorded the sworn statements of respondent No.2 herein, son of the deceased and younger brothers of the deceased as witness Nos.1 to 3. The learned Magistrate vide order dated 17.03.2021 allowed the said petition on the ground that though accused Nos.1, 2, 4 and 7 had confessed that it was they who were involved in the murder of the deceased, but the complaint dated 21.08.2018, statements of LWs.1 to 4 recorded under Section - 161 of the Cr.P.C. and further sworn statements of LWs.1, 2 and 4 vitrine the complicity of the petitioner in the murder of the deceased. Since at the stage of taking cognizance only prima facie case shall be made out and there is sufficient material on hand to proceed against the petitioner along with other accused who were already charge sheeted. Therefore, the petitioner herein is arraigned as accused along with accused Nos.1, 2 and 47. Cognizance was taken for the aforesaid offences.
4. CONTENTIONS OF THE PETITIONER:
i) Mr.K.B. Narasimhulu, learned counsel for the petitioner, would submit that in the statements of LWs.2, 3 and 4 recorded under Section - 161 of Cr.P.C., there is no mention about the petitioner and 4 KL,J Crl.R.C. No.283 of 2021 the name of the petitioner is not even mentioned in their statements.
The role played by the petitioner herein in commission of the offences is also not mentioned. There is improvement in the statement of respondent No.2 herein and other witnesses in their sworn statements recorded by the learned Magistrate in the aforesaid protest petition.
ii) He would further submit that the learned Magistrate failed to appreciate that to attract the offence under Section - 120B of IPC, there should be meeting of minds. The contents of the protest petition and also the statements of the witnesses recorded lack the ingredients of the offences alleged against the petitioner herein.
iii) He would also submit that the learned Magistrate has not followed the procedure laid down under Section - 210 of the Cr.P.C. There is delay in filing the protest petition. The learned Magistrate without considering the said aspects, allowed the protest petition filed by respondent No.2 and erroneously taken cognizance against the petitioner herein.
5. CONTENTIONS OF RESPONDENT No.2:
On the other hand, Mr. P. Vamsheedhar Reddy, learned counsel for respondent No.2 would submit that there is prima facie evidence 5 KL,J Crl.R.C. No.283 of 2021 against the petitioner herein. There is motive which is not in dispute. A quarrel with regard to the lease of land occurred three months prior to the incident among the accused persons including the petitioner herein and the deceased. Though the name of the petitioner is specifically mentioned in the complaint dated 21.08.2018, the Investigating Officer without considering the same laid the charge sheet deleting the name of the petitioner herein. Therefore, on consideration of the statements of the witnesses and the sworn statements recorded, the learned Magistrate had taken cognizance against the petitioner herein for the aforesaid offences by allowing the protest petition. There is no error in it.
6. ANALYSIS AND FINDING OF THE COURT:
i) In view of the above rival submissions and also perusal of the record would reveal that in the complaint dated 21.08.2018, respondent No.2 has stated that there was a quarrel between his father, his relatives viz., i) Girappagala Hanmanth S/o Girappagalla Chinna Girappa, ii) Mallampally Savari S/o Malllampally Bheemaiah (petitioner herein) and iii) Sirannagalla Narsimhulu S/o Sirannagalla Nagappa over the lease land of David Master about three (03) months 6 KL,J Crl.R.C. No.283 of 2021 back. Further, he has suspected that keeping the said matter in their mind, they might have killed his father by beating with sticks.
ii) As stated above, during the course of investigation, the Investigating Officer has recorded as many as ten (10) witnesses including respondent No.2 herein, wife and his younger brothers as circumstantial witnesses. None of them spoke about the role played by the petitioner. They have not even referred the name of the petitioner herein. Therefore, on considering the statements of the said witnesses recorded under Section - 161 of Cr.P.C., the Investigating Officer has dropped the charge against the petitioner herein on the ground that the evidence is not established against the petitioner herein.
iii) It is relevant to note that the petitioner herein was shown as accused No.2 in FIR No.89 of 2018. However, in the charge sheet, the Investigating Officer has mentioned the petitioner herein as accused No.3 and deleted his name from the charge sheet.
iv) In the statements recorded under Section - 161 of the Cr.P.C., respondent No.2 herein (LW.1) has not even mentioned the name of the petitioner herein. He has referred the names of accused 7 KL,J Crl.R.C. No.283 of 2021 Nos.1 and 2 only i.e., Girappagalla Hanumanth and Sirnagalla Chinna Narsimhulu. Even in the statements of LWs.2 and 3, they have not referred the name of the petitioner and they have referred the names of the above said persons. However, they are not eye-witnesses and they are only circumstantial witnesses. Mr. David S/o Bheemaiah, owner of the land, was examined as LW.5 by the Investigating Officer.
v) It is relevant to note that the said Mr. David (LW.5) categorically stated before the Investigating Officer that his wife is the absolute owner and possessor of the land admeasuring ACs.3.15 guntas in Sy.No.23/AA and Acs.3.15 guntas in Sy.No.23/EE. His elder son is the absolute owner of land admeasuring Acs.3.15 guntas in Sy.No.23/e and his younger son is the absolute owner of land admeasuring Acs.3.15 guntas in Sy.No.23/uu. In all, his wife and his sons are the owners of the land admeasuring Acs.13.20 guntas. Alluru Canal is passing through the fields to an extent of Acs.3.00 guntas which is situated to the left side of Canal was leased out to one Mr. Thimmappa for Rs.20,000/- per annum and the lease was expired in the year 2017 itself. He again let out the same to one Mr. Basappa during the years 2017 and 2019 and the remaining Acs.7.00 guntas of land was leased to Mr. Girappagalla Yellappa (deceased) during 2014. 8
KL,J Crl.R.C. No.283 of 2021 Girappagalla Hanumanth (A-1) approached him to lease out Acs.3.00 guntas of land situated at the Canal for which he refused and asked him to approach the deceased and then he went away. After three (03) months, Mr. Hanumanthu and Narasimhulu (A-2) quarreled with the deceased regarding the lease land and the same was informed by him. He later came to know that some unknown persons killed the deceased and he suspects that accused Nos.1 and 2 have committed the said murder. Therefore, none of the witnesses in their statements recorded under Section - 161 of the Cr.P.C. referred the name of the petitioner and the role played by him in commission of offences. Therefore, the Investigating Officer has deleted the petitioner's name from the charge sheet.
vi) However, in the protest petition, respondent No.2 herein has contended that he is an illiterate and he does not know reading and writing. Though he has mentioned the name of the petitioner herein, the police misconceived the evidence and did not consider the same and deleted the name of the petitioner herein. The entire incident was witnessed by the Villagers. The witnesses informed respondent No.2 herein and his family members about the fact and the manner of the 9 KL,J Crl.R.C. No.283 of 2021 incident and involvement of the petitioner herein in the murder of the deceased. The said facts were not mentioned by respondent No.2 herein either in his complaint or in his statement recorded under Section - 161 of the Cr.P.C.
vii) Charge sheet was filed on 30.08.2019 and the petitioner herein has filed the protest petition only on 31.01.2020. In the sworn statements recorded by the learned Magistrate in the said protest petition, only three witnesses including respondent No.2 herein have stated that on enquiry, LW.4 informed them that on the date of incident, accused Nos.1 to 7 including the petitioner herein holding sticks and hatching the plan to kill at accused No.7's house. The said facts were mentioned in the complaint and statements recorded under Section - 161 of the Cr.P.C. There is improvement and there is no basis for the same. Though they have mentioned the name of accused No.3 in the report as well as statement, the police did not charge the petitioner herein.
viii) As stated above, in the statements recorded under Section
- 161 of the Cr.P.C., they have not mentioned about the name of the petitioner herein and the role played by him in commission of the 10 KL,J Crl.R.C. No.283 of 2021 offence. There is no mention about LW.4 informing them with regard to the conspiracy, holding of sticks, hatching a plan to kill the deceased on the date of incident at accused No.7's house. It is a new improved version. It is also relevant to note that in the impugned order, the learned Magistrate has not mentioned the list of witnesses whose statements were recorded. There is no appendix to the impugned order.
ix) In M/s. Pepsi Foods Ltd. V. Special Judicial Magistrate1, the Hon'ble Supreme Court held as under:
"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 to 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 complaint 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. Magistrate has to 1 . AIR 1998 SC 749 11 KL,J Crl.R.C. No.283 of 2021 carefully scrutinise 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."
x) In M/s. GHCL Employees Stock Option Trust v. M/s. India Infoline Limited2, the Apex Court held in paragraph No.14 as under:
"14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record."
xi) In Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd.3, the Apex Court referring to its principle laid down in M/s Pepsi Foods Ltd.1 and also M/s. GHCL Employees Stock Option 2 . AIR 2013 SC 1433 3 . AIR 2021 SC 4587 12 KL,J Crl.R.C. No.283 of 2021 Trust2 held that the role played by the persons in commission of offence is sine qua non for initiating criminal proceedings.
xii) In Punjab National Bank v. Surendra Prasad Sinha4, the Apex Court held as under:
"It is also salutary to note that judicial process should not be an instrument of oppression or needles harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Migistracy to find whether the concerned accused should be legally responsible for the offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case of harass them for vendetta."
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. AIR 1992 SC 1815 13 KL,J Crl.R.C. No.283 of 2021 In view of the above said law laid down by the Apex Court, the Magistrate has to consider entire material on record while taking cognizance against an accused. Cognizance cannot be taken and summons cannot be issued against any person in a mechanical manner.
7. CONCLUSION:
i) As discussed above, there is no eye-witness to the incident.
Even respondent No.2 herein is a circumstantial witness. In the complaint dated 21.08.2018, he has only suspected the role played by the petitioner herein in commission of offence. In his statement recorded under Section - 161 of Cr.P.C., there is no mention about the role played by the petitioner herein in commission of offence. Other circumstantial witnesses including LWs.3 and 4, wife and brother of the deceased were also not referred the name of the petitioner herein and the role played by him in commission of offence. In protest petition, there is improved version without any basis. Respondent No.2 herein and other witnesses also stated new version. Even in their sworn statements recorded by the learned Magistrate, there is improvised version. Learned Magistrate without considering the said facts allowed the protest petition and took the cognizance against the 14 KL,J Crl.R.C. No.283 of 2021 petitioner herein. According to this Court, the said order is not a reasoned order as it is not on consideration of entire material on record and also the principle laid down by the Apex Court in the aforesaid decisions. Thus, viewed from any angle, the order under challenge suffers from infirmities and, therefore, the same is liable to be set aside.
ii) The Criminal Revision Case is accordingly allowed setting aside the order dated 17.03.2021 Crl.M.P. No.555 of 2021 in Cr.No.89 of 2018 of Gattu Police Station passed by the learned Additional Judicial Magistrate of First Class at Gadwal, taking cognizance against the petitioner herein.
As a sequel, the miscellaneous petitions, if any, pending in the revision shall stand closed.
_________________ K. LAKSHMAN, J 24th August, 2022 Mgr