Andhra Pradesh High Court - Amravati
Shaik Guljari Guljar, vs The State Of Andhra Pradesh, on 28 June, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.45500 of 2018
ORDER:(Per Hon'ble the Acting Chief Justice C.Praveen Kumar)
1) The present Writ Petition is filed under Article 226 of the Constitution of India seeking issuance of writ of certiorari calling for records leading to pass the Award by the 4th respondent on 14.07.2018 basing on Memo filed by the 6th respondent in deleting non-compoundable offences from C.C.No.306 of 2017 on the file of II Additional Judicial First Class Magistrate, Ongole, as illegal, arbitrary and without jurisdiction and violative of Article 226 of the Constitution of India and consequently to direct the 7th respondent not to alter the name of the petitioner in municipal records pertaining to the House bearing D.No.42-106-162, 9th lane, Plot No.864, Indiramma colony, Ongole.
2) The circumstances, which led to filing of the present Writ Petition are as under:-
The petitioner herein, who claims to be a poor woman belonging to Muslim community, states that during the lifetime of her husband, a plot bearing No.864 vide DK.No.311/1416 was given in favour of her husband, who passed away in the year 2011. Subsequently, she took loan from the Housing 2 Corporation and a pucca house was said to have been constructed in the above plot and is residing therein since then. It is alleged that 8th respondent created a fabricated patta with a view to grab the house and as a part of the plan, the 8th respondent and his associates came to the house of the petitioner on 07.01.2013, necked her out and grabbed the house forcibly. It is said that the 8th respondent and his associates beat the petitioner in black and blue and abused her in filthy language apart from outraging her modesty. A report came to be lodged with the 6th respondent, which led to registration of a case in Cr.No.112/2013 for the offences punishable under Sections 448, 323, 354, 468, 471, 506 read with 34 IPC and Section 5 of the A.P. Land Grabbing Act. Four of the accused were arrested and sent to judicial remand. After conducting investigation, the 6th respondent herein i.e., the Station House Officer, Ongole Taluq, Prakasam District, filed a final report, which was taken on file by the II Additional Judicial First Class Magistrate, Ongole as C.C.No.306 of 2017 for the above mentioned offences. The averments in the affidavit further show that 8th respondent herein who was a retired Government Teacher, fabricated DK patta in his name in respect of Plot No.864 and using the same as genuine, and made an attempt to grab the house with the help of other accused in C.C.No.306 of 2017. After registration of a case, the elders approached the petitioner and are alleged to have enacted a drama of compromise, to which she agreed. Pursuant thereto, 3 the writ petitioner was taken to police station where she affixed her thumb impression on a white paper. It was informed that the case would be referred to Lok Adalat. Later, using the said signed paper, a compromise memo was prepared and filed before the Court. It is now pleaded that the writ petitioner has not given any consent in favour of the accused and on the other hand, they made the writ petitioner believe that she is entitled to live in the house forever. Recently, the petitioner came to know that the Accused No.1 in C.C.No.306 of 2017 applied for assessment in Ongole Municipality by using the joint memo of compromise. On coming to know about the alleged fraud, the writ petitioner approached the elders and with the help of an Advocate she applied for certified copies of the compromise memo and other related documents pertaining to C.C.No.306 of 2017 leading to passing of the award by the 4th respondent. It is now alleged that after perusal of all those documents, it is learnt that the accused played fraud with help of the police and got deleted the non-compoundable offences. As such filed the present writ petition seeking to set-aside the Award.
3) Sri Y.Nagi Reddy, learned counsel appearing for the petitioner would contend that when the charge-sheet which was filed for non-compoundable offences was taken on file along with compoundable offences, the act of the Magistrate in accepting a memo filed by the Inspector of police for deletion of all the non-compoundable offences in view of the compromise, 4 is totally contrary to law. According to him, there is no provision in the Criminal Procedure Code, which authorize a Magistrate to delete certain penal sections after cognizance is taken. He further submits that act of the court below in allowing the memo without any reason and then referring the C.C. to Lok Adalat, with only compoundable offences, is illegal, and the subsequent act of the Court in closing the case basing on the award passed by the Lok Adalat is per se illegal, hence pleads that the order of the Lok Adalat compounding the non-
compoundable offences has to be viewed with suspicion and the same is liable to be set-aside. He further pleads that the petitioner is not aware about the contents of the joint memo filed, as the same has been obtained in the police station under a promise that she would be allowed to live in the said house.
4) On the other hand, Sri S.Nageswara Reddy, learned counsel appearing for the unofficial respondents would submit that the plea of the petitioner that the Award came to be passed behind the back of the writ petitioner and that she is not ware about the order appears to be incorrect since a reading of the Award clearly show that the terms of the compromise were read over to the petitioner and only after she consented, an order came to be passed compounding the offence. Since the Award came to be passed by Lok Adalat for compoundable offences, the argument of the learned counsel for the petitioner that the order is illegal, cannot be accepted.
5
5) The Legal Services Authorities Act, 1987 (for short, 'the Act, 1987') was enacted to organize Lok Adalats to ensure that the operation of the legal system promotes justice on a basis of equal opportunity. The system of Lok Adalat which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving the disputes with a spirit of conciliation outside the courts. Section 19 of the Act, 1987 provides for organization of Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. Sub-section (5) of Section 19 provides that a Lok Adalat shall have jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before, or of any matter which is falling within the jurisdiction of and is not brought before, any Court for which the Lok Adalat is organized.
6) Section 20 of the Act, 1987 provides for taking cognizance of cases by Lok Adalats and also the procedure for referring the matter where the parties agree, or one of the parties makes an application to the Court. Under this Section, if the Court is prima facie satisfied that there are chances of such settlement or that the matter is an appropriate one to be taken cognizance by the Lok Adalat, it shall refer the case to the Lok Adalat. Under proviso to the said Section, the case shall not be referred unless a reasonable opportunity was given to the other party.Under sub-section (3) of Section 20, where any case is 6 referred to a Lok Adalat under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (4) provides that every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles.
7) Section 21 of the Act, 1987 reads thus: "Award of Lok Adalat :
(1) Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court, or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under subsection (1) of Sec.20, the Court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).
(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award."
7Under this Section, every Award of Lok Adalat shall be deemed to be a decree of Civil Court or as the case may be, an order of any other Court, and when a compromise or settlement has been arrived at, by the Lok Adalat in a case referred to it under sub-section (1), court fee paid in such case shall be refunded. Further, under sub-section (2), every Award passed by the Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against such Award. Once an Award is passed by the Lok Adalat, it shall be final and no appeal is provided against it. However, Lok Adalat has to ensure that the parties to the dispute should be present before the Bench and accept the compromise or settlement arrived at, between them.
8) Further, Section 22C of The Legal Services Authorities Act, 1987 explains that any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute.
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law.
9) Keeping in view the provisions of the Statute, we shall now proceed to deal with the case on hand.
10) A perusal of the material on record would show that basing on the report given by the writ petitioner, a case in 8 Cr.No.112 of 2013 of Ongole Taluk police station came to be registered for the offences punishable under Sections 448, 323, 354, 468, 471, 506 read with 34 IPC and Section 5 of the A.P. Land Grabbing Act. Out of these offences, the offences punishable under Sections 323 and 506 are compoundable, while other offences are non-compoundable. The police investigated into the said offence and filed a final report, which was taken on file as C.C.No.306 of 2017 on the file of II Additional Munsif Magistrate Court, Ongole for the offences punishable under Sections 448, 323, 354, 468, 471, 506 read with 34 IPC and Section 5 of the A.P. Land Grabbing Act. Pending trial, a memo came to be filed by the Inspector of Police, Ongole Taluk police station, stating that both the parties have entered into a compromise before the elders and as such he sought for deletion of some of the offences which are non- compoundable in nature i.e., Section 5 of the Land Grabbing Act and Sections 354, 468, 471 and 380 IPC. It was further stated that since both the parties have entered into a compromise, there is no use to keep the case pending. The investigating agency also requested the court to forward the case to Lok Adalat for settlement. This memo was accepted by the Court with endorsement "Memo allowed, refer the case to Lok Adalat".
11) One of the main ground urged by learned counsel for the petitioner is that there is no provision in Cr.P.C. which permits a court to accept a memo filed by the Inspector after the case 9 was taken on file and delete some of the offences, for which cognizance was already taken. Section 173 Cr.P.C., prescribes filing of a report by the police on completion of investigation. Section 190 Cr.P.C., speaks about cognizance of offence by a Magistrate. Once cognizance of the offences are taken, there is no provision in Cr.P.C., which permits the court to delete some of the offences on a memo filed by the investigating agency. The only provision would be to discharge the accused either under Section 239 or 245 Cr.P.C.
12) In the present case, very strangely, the learned Magistrate accepted the memo filed by the Inspector, without resorting to any of the provisions of Cr.P.C. It may be true that the parties have compromised the matter, but there is no power for the court to delete certain offences for which cognizance has already been taken by the court and then refer the compoundable offences to the Lok Adalat for effecting the compromise.
13) In the present writ petition, the writ petitioner herein has questioned the very award itself on the ground that the procedure followed by the Magistrate in referring the case to Lok Adalat is illegal and consequently challenged the act of the first accused in trying to get his name mutated. It is to be noted here that the Award came to be passed by the Lok Adalat only for the offences which are referred to it by the concerned 10 court which are compoundable. Since the offences, for which a compromise was sought for, are compoundable, the finding of the Lok Adalat cannot be found fault with. The learned counsel for the petitioner would contend that the said Award has been obtained by fraud as the petitioner was not aware about the contents of the memo and her thumb impression was obtained in police station on a white paper. If really, the said thumb impression was obtained by force in the police station on a false promise, there was ample opportunity for her to complain about the same before the authorities or before the appropriate forum, which was not done. A reading of the Award passed by the Lok Adalat would show that the contents of the Award were read over to both the parties in Telugu and it was admitted by them to be true and correct. It would be useful to extract that portion of the order, which is as under:-
"The averments of the Terms of Compromise memo was read over and explained to both parties in Telugu and admitted by them to be true and correct. Hence, the Terms of compromise memo filed by the both parties is allowed. In view of the allowing of terms of compromise memo filed by both parties, the case filed by the victim has to be settled. In the result, award is passed accordingly in terms of compromise. Enclosed the Terms of compromise filed by the both parties along with the award."
14) From the above, it is very clear that the contents of the compromise memo were read over to the writ petitioner also, to which she agreed and signed. Having signed before the authorities, it may not be proper for her to turn a round and say that she was not aware about the contents of the award. Hence, we see no ground to interfere with the Award passed. 11 But, as observed by us earlier, the trial court in our view, prima-facie, was incorrect in accepting the memo filed by the Inspector of Police for deletion of certain offences after taking the case on file.
15) Hence, liberty is given to the petitioner to challenge the said order, if so desired, and if necessary take further steps in challenging the Award. Having regard to the above, the operation of the Award shall be stayed for a period of four months from the date of receipt of a copy of this order.
16) With the above observation, the Writ Petition is disposed of. There shall be no order as to costs. Miscellaneous Petitions pending if any in this Writ Petition shall stand closed.
___________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _______________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 28 .06.2019 GM