Andhra Pradesh High Court - Amravati
K.Meher Kumar vs V.Sailaja on 31 July, 2019
HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION No.270 of 2019
ORDER:
This Criminal Petition is filed by the petitioner under Section 482 of the Code of Criminal Procedure to quash the Docket Order dated 27.09.2018 passed in C.C.No.1611 of 2018 by the I Additional Chief Metropolitan Magistrate, Visakhapatnam.
On a private complaint filed by the 1st to 3rd respondents herein, learned I Additional Chief Metropolitan magistrate, Visakhapatnam held that a prima facie case is made out for the offence under Sections 181, 182, 192, 193, 209, 406 and 420 IPC and took cognizance of the same and numbered the private complaint as C.C.No.1611 of 2018.
The brief factual background of the case is as follows:
One Dr.Dusa Balarama Swamy Naidu had acquired vast properties. He was issueless and died instate. Therefore, a dispute arose about his estate. The complainants / respondents 1 to 3 claimed to be the legal heirs of late Dr.Dusa Balarama Swamy Naidu. The accused persons also claimed to be the legal heirs and they claimed over the property. According to the complainants, the surname of the accused persons is "Kota" and not "Dusa". Stating that the 1st and 2nd accused have given false evidence and have styled themselves as members of "Dusa" family, the complaint is 2 filed. According to the complainants, 1st accused is Kota Sahitya S/o Meher Kumar and not Dusa Sahitya Balaram S/o Adinarayana. The complainants relied upon a set of 14 documents and state that the accused have manipulated, misrepresented and obtained the same. Therefore, they said that the offence under sections described above are made out. A sworn affidavit also given by the complainants to the same effect. Basing on this material, the learned Magistrate took cognizance.
This Court has heard Sri P. Sai Surya Teja, learned counsel for the petitioner-accused No.2 and Sri A. Ananda Rao, learned counsel for the respondents and the learned Public Prosecutor for the State.
Learned counsel for the petitioner-Accused No.2 submits that Accused No.1 is supposed to be the main culprit and Accused No.2 is supposed to abet Accused No.1. Learned counsel points out that in O.S.No.504 of 2011, which is pending on the file of the XI Additional District Judge Court, Visakhapatnam, an application in I.A.No.712 of 2017 was filed under Section 340 read with 195 of Code of Criminal Procedure for the very same relief and thereafter to record of a finding and make a complaint in writing to the Magistrate for prosecution of the 9th respondent therein for the same offences. A counter was filed to the said application by the 1st accused, who is the 9th respondent in I.A.No.712 of 2017 in 3 O.S.No.504 of 2011. Virtually, the very same documents are relied upon in the present application. The first and foremost submission is that simultaneous proceedings under Civil law and Criminal law for the same offence under Section 340 and 195 of Cr.P.C. is not maintainable. The second submission is that for the offence under Sections 181, 182, 192 and 193 of IPC, there is a bar and that prior permission is required as per Section 195 of Cr.P.C. and such a complaint can only be filed by the Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
He also submits that the Magistrate did not apply his mind and simply held that he perused the sworn affidavit and case record and came to the conclusion that a prima facie case is made out. Learned counsel relies upon the following four judgments essentially:
1) S.R.Sukumar v S. Sunaad Raghuram1;
2) Rajendra Rajoriya v Jagat Narain Thapak and another2
3) Saloni Arora v State (NCT of Delhi)3;
4) Narendra Kumar Srivastava v State of Bihar and Others4; and
5) Mohammed Ibrahim and Others v State of Bihar and another5.
In reply to this, learned counsel for the respondents / complainants submits that a clear case is made out to 1 (2015) 9 Supreme Court Cases 609 2 2018 SCC Online SC 159 3 (2017) 3 Supreme Court Cases 286 4 (2019) 3 Supreme Court cases 318 5 (2009) 8 Supreme Court Cases 751 4 prosecute the petitioner. He submits that the civil and criminal proceedings are independent proceedings and that both can be simultaneously heard and concluded. There are different false declarations made by the accused persons. Therefore, learned counsel submits that there is no prohibition of law and the applications are maintainable. He also argues that the docket order dt.27.09.2018 is perfectly valid and that the Magistrate rightly took cognizance of the case. He relies upon the following citations:
1) Balabolu Ramesh and others v Savvana Radha Ramanamma and others6
2) Perumal v Janaki7
3) State of Bihar v Rajendra Agarwal8
4) State of Maharashtra v Ishwar Piraji Kalapiri9
5) Mustaq Ahmed v Md. Habibur Rehman and Others10
6) Keshub Mahindra v State of Madhya Pradesh11
7) State of Kerala v OC Kuttan12 This Court after hearing both the counsel notices that there are two applications pending. One is I.A.No.712 of 2017 filed in a pending suit i.e., O.S.No.504 of 2011 on the file of XI Additional District Judge at Visakhapatnam, and the prayer in the said application is that the 9th defendant / accused No.1 (Kota Sahitya) has filed a false statement, made false signatures in judicial proceedings. Hence the application is 6 2104 (4) ALD 330 7 (2014) 1 SR 591 8 1996 SCC Crl.628 9 1996 SCC Crl. 150 10 1996 SCC Crl. 443 11 1996 SCC Crl.124 12 AIR 1999 SC 1044 5 filed under Section 340 Cr.P.C. read with 195 Cr.P.C. to record an appropriate finding, make a complaint in writing and then sent to the Magistrate of First Class having jurisdiction for initiating proceedings. In the private complaint, that is filed, the prayer is to the effect that the petitioners have deliberately given false evidence, used false evidence in the court of justice, gave false addresses and obtained certain documents to grab the properties. Therefore, a request is made to the Magistrate to take cognizance of the complaint under sections referred to earlier and to punish the accused persons. The documents relied upon are virtually the same.
At the outset, two simultaneous proceedings cannot continue. It is always desirable that a person should be prosecuted only once. Apart from the rule of double jeopardy, there is also a likelihood of conflicting of finding being reached if two simultaneous proceedings are continued. Therefore, this court holds that prosecuting both the proceedings is not permissible, virtually based upon the same set of facts.
As far as the issue of taking of cognizance is concerned, the law on the same is well settled and does not require repetition. The Magistrate while exercising the said discretion should apply his mind independently to the material placed before him and then come to the conclusion that the offence 6 is made out. In the case on hand, learned Magistrate was bound to apply his mind and see whether the offences which are mentioned are attracted or not. As a corollary, he should have seen whether for an offence alleged under Sections 181, 182, 192 and 193 I.P.C. he could directly take cognizance. The very fact that the Magistrate overlooked that there is a bar under Section 195 of Cr.P.C., clearly shows that he did not independently apply his mind. The decisions cited by the learned counsel for the petitioner are applicable to the facts of the case. Both Saloni Arora case (3 supra) and Narendhra Kumar Srivastava case (4 supra) very squarely apply to the facts and circumstances of the case. Before taking cognizance, learned Magistrate was bound to examine the mandatory procedure prescribed. Even though a detailed judgment need not be written by the Magistrate at this stage he is bound to apply his mind. His order should reflect that he has perused the applicable sections.
As far as the offence under Sections 406 and 420 I.P.C. are concerned, learned counsel rightly relied upon Mohammed Ibrahim case (5 supra). He says that there is no question of false document or executing a false document basing on a representation that is somebody else etc., are there. The claim before the Court, as per the learned counsel for the petitioner, was whether he is the adopted son of late Dusa Adinarayana Rao or not. In fact, in Civil Revision Petition No.2198 of 2015, which arises out of the order dated 7 20.01.2015 in I.A.No.230 of 2014 in O.S.No.176 of 2011 on the file of Principal Junior Civil Judge, Srikakulam relating to the same property, it was held by a learned single Judge of this Court that Accused No.1 can refer himself as Kota Sahitya S/o Mehar Kumar @ Dusa Sahitya Balaram S/o Adinarayana Rao (Adoptive father). Therefore, the learned counsel for the petitioner relied upon this judgment and the judgment of the Hon'ble Supreme of Court in Mohammed Ibrahim case (5 supra) to show that he has not acted fraudulently or misrepresented himself. The judgment cited by the learned counsel for the respondents on the other hand shows that at the stage of quashing proceedings the Court should look into an overall view and it should be presumed that what is mentioned is correct. The respondent further argued that the Court cannot sift through the material and come to the conclusion whether the same is correct or not.
In the case on hand, this Court is not proposing to sift through the material. Prima facie reading of the case shows that the mandatory requirements under Section 195 Cr.P.C. are not followed. If the learned Magistrate has perused the said section, he would have noticed the embargo that is there by virtue of Section 195 of Cr.P.C. Therefore, it is clear that the learned Magistrate did not actually apply his mind before coming to a conclusion that a case is made out. The essential ingredients under other sections should have been examined vis-a-vis the material. While it is true that Magistrate is not 8 expected to write a detailed judgment, the fact remains that he was bound to examine the ingredients of prima facie material.
In view of all the above, this Court is of the opinion that continuing the proceedings would amount to abusing of the process of the Court. Therefore, the power under Section 482 of Cr.P.C. is being exercised to quash the proceedings.
Accordingly, this Criminal Petition is allowed. As a sequel, miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
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D.V.S.S. SOMAYAJULU, J
Date: .07.2019
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HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU CRIMINAL PETITION No.270 of 2019 Date: .07.2019 ssv