Andhra Pradesh High Court - Amravati
Yarapathineni Srinivasa Rao, vs The State Of Andhra Pradesh on 30 August, 2019
*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ Crl.P.No.4560 of 2019
And
Crl.P.No.4642 of 2019
% 30-08-2019
Crl.P.No.4560 of 2019
# M.Hanumantha Rao
... Petitioner/A.8
Vs.
$ State of Andhra Pradesh and
Kundurthi Gurava Chary
... Respondents
Crl.P.No.4642 of 2019
# Yarapathineni Srinivas Rao
... Petitioner/A.2
Vs.
$ State of Andhra Pradesh and
Kundurthi Gurava Chary
... Respondents
! Counsel for the petitioners: Sri Posani Venkateswarulu, for
Sri P.Sai Surya Teja and Sri Ancha Pandu Ranga Rao
! Counsel for the 1st Respondent: learned Advocate General
! Counsel for the 2nd Respondent: Sri V.Sai Kumar
< Gist:
> Head Note:
? Cases referred:
1 (2015) 6 SCC 287
2 2013 (10) SCC 705
3 2007 (12) SCC 641
4 MANU/BH/0324/1991
5
(2010) 8 SCC 206
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
Crl.P.Nos.4560 and 4642 of 2019
COMMON ORDER:
Both the Criminal Petitions are filed under Section 482 Cr.P.C., to quash the docket order dated 11.07.2019 passed in CFR.No.789 of 2019 by the Judicial First Class Magistrate, Piduguralla, Guntur District.
This Court has heard Sri Ponsani Venkateswarlu, learned counsel for the petitioner representing both Sri P.Sai Surya Teja and Sri Ancha Pandu Ranga Rao for the petitioners. The learned Advocate General appeared for the 1st respondent-State. For the 2nd respondent learned counsel Sri V.Sai Kumar appeared.
With the consent of all the counsel, the main criminal petitions itself were taken up for hearing.
In both the criminal petitions, IA.No.2 is filed for stay of all further proceedings pursuant to the docket order dated 11.07.2019 passed in CFR.No.789 of 2019 by the Judicial First Class Magistrate, Piduguralla. The main criminal petitions are filed challenging the said docket order. In Crl.P.No.4642 of 2019, petitioner is the second accused and in Crl.P.No.4560 of 2019, petitioner is the 8th accused. In both the applications, the 2nd respondent is the de-facto complainant.
3
Sri Posani Venkateswarlu, learned counsel commenced his arguments and argued on behalf of the petitioner in both the cases.
The issue in this case arises out of a private complaint filed by the 2nd respondent herein before the Junior Civil Judge-cum-Judicial First Class Magistrate, Piduguralla on 10.07.2019. It was supported by an affidavit. The learned Additional First Class Magistrate passed the following order on 11.07.2019:
"Complainant is present. Heard and perused the record. Complaint is forwarded to SHO, Piduguralla under Section 156(3) Cr.P.C. for carrying out investigation and to file charge sheet. Call on 29.07.2019."
This is the order that is impugned in both the criminal petitions.
The fundamental submission made by the learned counsel for the petitioner is that the order does not disclose the needed application of mind. He submits that a reading of the order does not show that the learned Magistrate applied his mind to the facts and circumstances of the case. It is his contention that this order which is very brief and terse is opposed to the settled law on the subject. He also submits that a reading of the complaint would show that the alleged offences took place in the years 2013, 2015, 2016 and on 4 various other dates. Learned counsel submits that the Magistrate should have seen if there is any explanation for the inordinate delay in filing the application/private complaint in July, 2019. According to the learned counsel, the fact that these dates are not considered nor was delay taken into account is manifest from a reading of the docket order itself. As a corollary, he states that this itself discloses the "non-application" of mind.
He also submits that there are a lot of internal inconsistencies in dates and admissions and the Magistrate did not apply his mind to the same. Lastly, the learned counsel submits that as per the case law of Priyanka Srivastava v. State of U.P.1, the preconditions for ordering investigation under Section 156(3) Cr.P.C., are not made out. Learned counsel, apart from Priyanka Srivastava's case relies upon the following judgments.
(1) Anil Kumar v. M.K. Aiyappa2 (2) Dilawar Singh v. State of Delhi3 and lastly the judgment of a learned single Judge of this Court delivered in Crl.P.No.2850 of 2016.
The impugned order that has been passed has been set out earlier. Learned counsel for the petitioner at the outset argued that in the prayer portion of the private complaint, the 1 (2015) 6 SCC 287 2 2013 (10) SCC 705 3 2007 (12) SCC 641 5 petitioner merely prayed for an FIR under Sections 420 and 406 IPC. He pointed out that the FIR which is filed as an additional document has listed the following offences. Sections 420, 406, 307, 166, 323, 506 120-B IPC and 156 (3) Cr.P.C. Learned counsel points out that the impugned order was passed on 11.07.2019; information was received in the police Station on 31.07.2019 and immediately thereafter all the above offences were included. Therefore, he submits that this is clearly vitiated and is a motivated action. Learned Advocate General, however, pointed out that the complaint is filed under Section 200 IPC and in para 1 of the complaint itself the offences are described as follows: Sections 420, 406, 307, 166, 323, 506 r/w 120 IPC. The learned Advocate General points out that the complaint was forwarded to the SHO for carrying out investigation. Therefore, he submits that the Police did not commit any error in including these sections. In the alternative, he also submits that after the investigation is completed, the Police would ultimately decide on the applicable sections or the offences. Therefore, he submits that merely on this ground, it cannot be said that the action is vitiated.
Learned counsel appearing for the petitioner relies upon the judgment in Dilawar Singh's case (3 supra); in paras 9 to 12, the Hon'ble Supreme Court was dealing with a question of delay. The Hon'ble Supreme Court cautioned that the Court has to be vigilant in looking into the possible 6 explanation for the delay in lodging the report, since delay offers an opportunity for the complainant to embellish or even fabricate the averments in the complaint. The learned counsel relies upon para 12 of the judgment and submits that merely stating that the Police did not take any action is not enough to explain the delay. He relies upon Anil Kumar's case (2 supra), particularly to para 11, wherein it is held as follows:
"11. The scope of Section 156(3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction Under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Code of Criminal Procedure, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter Under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation Under Section 156(3) Code of Criminal 7 Procedure, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
Lastly, he relies upon judgment of the Hon'ble Supreme Court of India in Priyanka Srivastava's case (1 supra) and argues that after considering the two earlier judgments which are cited by him, the Hon'ble Supreme Court of India clearly held that (a) a private complaint should be supported by a proper affidavit and (b) before an application under Section 156(3) Cr.P.C. is ordered, there should be prior application under Section 154(1) and 154(3) Cr.P.C. Both these aspects should be spelt out in the application and necessary documents should be filed. Learned counsel submits that basing on this judgment that if the complaint is read, it is clear that the complaint is directly filed and there is no proof to show that the prior applications under Section 154(1) and 154(3) Cr.P.C., were actually filed. As far as the affidavit is concerned, learned counsel submits that the affidavit that is filed in this case is absolutely bereft of details and it cannot be called an "affidavit" in support of the application.
Sri V.Sai Kumar, learned counsel appearing for the de- facto complainant relies upon a judgment of a learned single Judge of the Punjab and Haryana high Court in M/s. Sujan Multiports Ltd., v. State of Haryana CRM-M-12329-2018 8 (O&M) dated 12.03.2019 and argues that the order passed by the Magistrate is correct in the facts and circumstances of the case and that a bare reading of 156 Cr.P.C., indicates that a reasoned order need not be written. He supports the docket order in its entirety.
The learned counsel for respondent No.1 relying upon a single Judge's order of Punjab and Haryana High Court in M/s. Sujan Multiports Ltd., v. State of Haryana's case argues that writing a long and deliberate order is not called for at this stage. He submits that the Magistrate need not put out his entire reasons/thinking on the order issued. Recording of reasons at this stage can also lead to undesirable consequences including revisions and appeals. Even the section 156 Cr.P.C., itself does not warrant the recording of reasons. He argues that if the Police who can also register a case do not have record a reason, for registering a case, the Magistrate cannot be called upon to record reasons for referring a case for investigation.
The learned Advocate General appearing for the State points out that a reading of the complaint discloses a systematic offence that has taken place over a period of time. He submits that due to the prevalent circumstances, the complainant could not get justice. Therefore, he filed a private complaint and the learned Magistrate, according to the learned Advocate General, did not commit any error. He 9 submits that for merely ordering investigation, a reasoned/detailed order is not mandated. He points out that the order passed is enough in the circumstances. As per the learned Advocate General, at this stage, a detailed order is not called for. He argues that the order is perfectly in line with following two judgments of the Hon'ble Supreme Court of India:
(a) Dilip Kumar Kundu v. Madan Ch.Dey4 and
(b) Srinivas Gundluri v. SEPCO Electric Power Construction Corporation5.
Lastly, the Advocate General also relies upon Priyanka Srivastava's case (1 supra) and argues that even if an offence is remotely made out, law should be set in motion. The learned Advocate General relies upon a judgment of the high Court of Patna reported in Dilip Kumar Kundu (4 supra), wherein it is held in para 34 that an order which states, perusing the complaint is itself enough and that nothing further needs to be written. He also relies upon Srinivas Gundluri's case (5 supra), wherein in para 21, a brief order was written. In the said case also, the Magistrate perused the complaint without examining the merits and directed an investigation under Section 156 (3) Cr.P.C., but the Hon'ble Supreme Court was satisfied with the said order. 4 MANU/BH/0324/1991 5 (2010) 8 SCC 206 10 Therefore, learned Advocate General argues that in the case on hand also what was merely directed was an investigation and that this is in line with the Patna High Court judgment and also the judgment of the Hon'ble Supreme Court of India reported in Srinivas Gundluri (5 supra). Hence, learned Advocate General supports the order passed. It is his submission that the accused are very influential and well connected people and that as there is great seriousness in the offences alleged, this Court should not interfere in the facts and circumstances of the case and should allow the investigation to progress. It is his contention that passing any orders at this stage would amount to interfering with the investigation.
This Court notices that the case has a long and chequered history. Additional documents were also filed which go into the merits of the matter. This Court, at this stage is not proposing to go into all the detailed submissions that have been made by the learned counsel appearing for the petitioners and the learned Advocate General appearing for the State. Both of them have taken great pains to minutely analyse the case on hand on the basis of the facts and case law.
This Court after examining the submissions made by both the parties is of the opinion that in Priyanka Srivastava's case (1 supra), the Hon'ble Supreme Court took 11 into consideration the other judgments that were cited across the bar including Anil Kumar and Dilawarsing cases (2 and 3 supra). The decisions cited by the learned Advocate General are however, not considered by the Hon'ble Supreme Court of India as the same were obviously not brought to the notice of the Hon'ble Court. All the four judgments relied upon by the counsel for the petitioner and the one relied upon by the learned counsel for the respondent are passed by coordinate Benches of two judges each. In that view of the matter, as per the settled principles of judicial precedents, the latest view will have to be preferred. If the latest view has to be preferred, this Court has to rely upon Priyanka Srivastava's case. In Priyanka Srivastava's case their Lordships in para 22 referred to Anil Kumar's case and in para 23, to the decision in Dilawarsingh.
If the decision in Anil Kumar is perused, as approved in Priyanka Srivastava's case, the application of mind by the Magistrate is to be reflected in the order. It is not enough to state that he has gone through the complaint, documents and heard the complainant. The Hon'ble Supreme Court of India has held that the factors that weighed with the Magistrate to order the investigation under Section 156 (3) Cr.P.C. should be reflected in the order, although a detailed explanation or detailed reasons are not warranted. 12
Apart from this, in Priyanka Srivastava's case (1 supra), the Hon'ble Supreme Court said that the affidavit should accompany the application under Section 156(3) Cr.P.C. The affidavit in this case is very very brief. It does not disclose any facts mentioned in the complaint. The Hon'ble Supreme Court of India noted that unscrupulous litigants can take steps in the Court of law and in order to prevent an unscrupulous litigant from taking advantage of the system and to encourage honest citizens to have free access to judicial system, the Hon'ble Supreme Court of India mandated the filing of an affidavit. This is the purpose of the affidavit. The affidavit in the opinion of this Court should contain a statement on oath at least briefly of all the relevant particulars and events/offences which are mentioned in the complaint that is filed. This would enable the Magistrate to verify the truth and also the veracity of the allegations made in the complaint. Mere filing of any affidavit will not suffice. Sufficient details of the alleged offence with dates and description of the events however brief are necessary in the affidavit to meet the test laid down in Priyanka Srivastava's case. This affidavit would make the applicant more responsible. If the present affidavit is seen, it is clear that the same does not made the tests laid down in Priyanka Srivastava's case.
Apart from this, in para 31 of Priyanka Srivastava's case (1surpa), the Hon'ble Supreme Court of India has clearly 13 held that there has to be a prior application under Section 154 (1) and 154(3) Cr.P.C. For filing an application under Section 156(3) Cr.P.C., both these aspects must be spelt out in the application and documentary proof of this must also be filed.
If the present case is viewed against the back drop of this case law, this Court has come to a conclusion that the judgment in Priyanka Srivastava's case (1 supra) will have to hold the field. It is the latest exposition on the law on this subject. It has taken into consideration the earlier cases on the subject and has come to a conclusion. The order of the learned Magistrate in this case does not meet the tests that are laid down in Priyanka Srivastava's case. If the impugned order is examined, it does not disclose the factors that weighed with the learned Magistrate in coming to the said conclusion. Therefore, the impugned order runs foul of the law laid down in Anil Kumar and Prinyanka Srivastava cases. Apart from this, the issue of delay has also not apparently attracted the attention of the learned Magistrate. In Dilawarsing's case, which is referred to earlier, the Hon'ble Supreme Court sounded a note of caution and said that if there is a delay in coming to a Court or before the Police, the Court should view the allegation carefully and look for a satisfactory explanation. The fact that in the impugned order, this issue does not appear that the Magistrate has 14 taken note of the law as laid down in Dilawasing's case or of the delay.
Whatever be the seriousness of the allegations made; however the high the accused may be and despite the passionate presentation of the events and the alleged offences by the learned Advocate General, this Court (which is bound by the law of precedents) has to follow the law as laid down in Priyanka Srivastava's case.
In that view of the matter, this Court is of the opinion that continuation of the further proceedings would amount to an abuse of process of the Court. Due to the non-application of mind; the routine manner in which the complaint has been referred to the Police for investigation, failure to notice the mandate in Priyanka Srivastava's case; this Court has to come to a conclusion that continuation of this process would amount to an abuse of process of law. Hence, as the contesting respondent/de-facto complainant has also been heard, this Court is of the opinion that both the applications Crl.P.Nos.4642 of 2019 and 4560 of 2019 have to be allowed.
In the result, the Criminal Petitions are allowed and the docket order dated 11.07.2019 passed in CFR.No.789 of 2019 by the Judicial Magistrate of First Class, Piduguralla is hereby quashed under Section 482 Cr.P.C. all further proceedings consequently are also nullified. 15
As a sequel, miscellaneous petitions, if any, pending shall stand closed.
_________________________ D.V.S.S.SOMAYAJULU,J Date : 30.08.2019 Not: L.R. copy be marked.
KLP