Andhra Pradesh High Court - Amravati
Golla Gumma Ramesh Babu, Kurnool Dt 4 ... vs The State Of Ap., Rep Pp And Anr., on 18 December, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL REVISION CASE No.573 OF 2017
ORDER:-
This Criminal Revision Case is preferred by the petitioners questioning the Order dated 23-01-2017 passed by the learned Judicial Magistrate of First Class, Dhone, taking cognizance of case against A-1 to A-5 in the said case under Section 307 r/w 34 of the Indian Penal Code, 1860 (for short "I.P.C.") and questioning the Official Memo dated 17-02-2017 of the learned Judicial Magistrate of First Class, Dhone, returning the charge sheet with a direction to the Investigation Officer to file fresh charge sheet adding Section 307 r/w 34 of I.P.C.
2. Facts relevant to dispose of this criminal revision case may briefly be stated as follows -
On the report lodged by the de facto complainant against the petitioners herein, who are A-1 to A-5, a case in Crime No.73 of 2015 was registered for the offences punishable under Section 324, 307 r/w 34 of I.P.C. After completion of investigation of the case, the Investigation Officer filed charge sheet against the accused only for the offence punishable under Section 324 r/w 34 of I.P.C. He has deleted the offence under Section 307 of I.P.C. at the time of filing the charge sheet.
3. After the said charge sheet is filed in the trial Court, the learned Magistrate issued notice to the de facto complainant as Section 307 of I.P.C. is deleted in the charge sheet. The de facto complainant filed a protest petition. During the enquiry made in the said protest petition, the Magistrate has recorded the 2 sworn statements of PW-1 to PW-3. After considering the protest petition and the aforesaid sworn statements of PW-1 to PW-3, the learned Magistrate by his Order dated 23-01-2017, having held, that he has perused the record and sworn statements of PW-1 to PW-3 and that there is prima facie case against A-1 to A-5 for the offence punishable under Section 307 r/w 34 of I.P.C., allowed the protest petition. However, without taking cognizance of the case under Section 307 r/w 34 of I.P.C., he has issued Official Memo dated 17-02-2017 to the Station House Officer of Bethamcherla Police Station, while returning the said charge sheet, directing the Investigation Officer to file fresh charge sheet adding section of law under Section 307 r/w 34 of I.P.C. also in the charge sheet.
4. Aggrieved by the said Order dated 23-01-2017, allowing the protest petition and also in issuing the Official Memo dated 17-02-2017 to the Investigation Officer, the accused/A-1 to A-5 filed this revision petition questioning the legality and validity of the impugned Order dated 23-01-2017 and the above Official Memo dated 17-02-2017.
5. Heard learned counsel for the petitioners and learned Additional Public Prosecutor.
6. Learned counsel for the petitioners would submit that having allowed the protest petition, the trial Court has to treat the said offence under Section 307 r/w 34 of I.P.C. as a private complaint under Section 200 Cr.P.C. and he has to club the same along with the police case filed for the offence punishable under Section 324 r/w 34 of I.P.C., under Section 210 of Cr.P.C. and conduct the trial. He contends that the Magistrate has no 3 jurisdiction to return the charge sheet and direct the Investigation Officer to file fresh charge sheet by adding the section of Law under Section 307 r/w 34 of I.P.C. on the ground that the protest petition filed by the de facto complainant and the sworn statements of PW-1 to PW-3 disclose that there is a prima facie case against A-1 to A-5 to take cognizance against A-1 to A-5 for the offence punishable under Section 307 r/w 34 of I.P.C. also. So, the impugned Official Memo dated 17-02- 2017 is not valid and it is un-sustainable under law. Therefore, he would pray to set aside both the order dated 23-01-2017 allowing the protest petition and also the Official Memo dated 17-02-2017, directing the police to file fresh charge sheet adding the Section of law under Section 307 r/w 34 of I.P.C. also.
7. Learned Additional Public Prosecutor opposed the criminal revision case. He would submit that after the protest petition was filed by the de facto complainant and after the learned Magistrate conducted enquiry and recorded the sworn statements of PW-1 to PW-3, the learned Magistrate found that there is a prima facie case against A-1 to A-5 for the offence punishable under Section 307 r/w 34 of I.P.C. also. Therefore, the learned Magistrate has rightly allowed the protest petition. There is no illegality in allowing the said protest petition in the facts and circumstances of the case. So, he would submit that the said order dated 23-01-2017 is perfectly valid and sustainable under law. However, he would submit that the Official Memo dated 17-02-2017 issued by the learned Magistrate returning the charge sheet and directing the Investigation Officer to file fresh charge sheet after adding 4 Section 307 r/w 34 of I.P.C. also is not sustainable under law. He would concede that the learned Magistrate cannot issue any such direction by returning the charge sheet to file fresh charge sheet by adding Section 307 r/w 34 of I.P.C. Therefore, he would submit that the learned Magistrate can take the case on to the file for the offence under Section 307 r/w 34 of I.P.C. also after taking cognizance of the same along with the offence under Section 324 r/w 34 of I.P.C., for which the charge sheet is filed.
8. As already noticed supra while narrating the facts of the case, on the report lodged by the de facto complainant with the police, initially F.I.R. was registered for the offences punishable under Sections 324 and 307 r/w 34 of I.P.C. However, after completion of investigation, the police filed charge sheet only for the offence under Section 324 r/w 34 of I.P.C. The Investigating Officer has deleted the Section 307 of I.P.C. at the time of filing the charge sheet. After the charge sheet is filed in the trial Court, as per the procedure and practice prevailing, the learned Magistrate has rightly issued a notice to the de facto complainant to submit his objections, if any, relating to deletion of Section 307 of I.P.C. at the time of filing the charge sheet. On receipt of the said notice, the de facto complainant filed a protest petition regarding deletion of Section 307 r/w 34 of I./P.C. in the charge sheet. Therefore, the learned Magistrate has conducted an enquiry on the said protest petition. He has recorded the sworn statements of PW-1 to PW-3, which are now placed on record along with this criminal revision petition. After considering the protest petition and the sworn statements of PW-1 to PW-3, the learned Magistrate found that there is a 5 prima facie case made out against A-1 to A-5 for the offence under Section 307 r/w 34 of I.P.C. also. Therefore, by his Order dated 23-01-2017, the learned Magistrate has allowed the said protest petition.
9. So far so good. The problem starts from this stage. Having allowed the protest petition and having found that the material available on record and the sworn statements of PW-1 to PW-3 establish that there is a prima facie case against A-1 to A-5 for the offence under Section 307 r/w 34 of I.P.C. also, instead of taking the case on to the file under Section 307 r/w 34 of I.P.C. also against A-1 to A-5 along with the offence under Section 324 r/w 34 of I.P.C. for which the charge sheet is filed, the learned Magistrate has erroneously issued the impugned Official Memo dated 17-02-2017 returning the charge sheet to the Station House Officer of Bethamcherla Police Station, with a direction to Investigation Officer to file fresh charge sheet after adding the section of law under Section 307 r/w 34 of I.P.C. also.
10. The official memo reads as follows:
" OFFICIAL MEMO The Station House Officer, Bethamcherla P.S., is hereby informed that the charge sheet filed by the Inspector of Police, Bethamcherla P.S., in Cr.No.73/2015, u/Sec.324 r/w 34 IPC deleting the section of law u/S.307 IPC and the notice was issued to the de facto complainant namely Golla Gumma Venkata Ramudu. The de facto complainant filed in C.F.R. No.2909/2016 and sworn statements of PW1 to PW3. On perusal of the record and sworn statements of the witnesses that there is a prima facie case against A1 to A5 for the offence u/S.307 r/w 6 34 IPC. The charge sheet filed by you is herewith return with a direction to file fresh charge sheet adding the section of law u/S.307 r/w 34 IPC.
Sd/-
Judl. Magistrate of I Class, Dhone.
To The Station House Officer, Bethamcherla P.S."
11. The said Official memo cannot be sustained as valid under law in the facts and circumstances of the case. The learned Magistrate cannot return the charge sheet after conducting enquiry in the protest petition by the Court and direct the police to file fresh charge sheet after adding the Section of law under Section 307 r/w 34 of I.P.C as per his findings recorded in the protest petition after conducting enquiry in it. At best, as already noticed supra, as he found from the sworn statements of PW-1 to PW-3 that were recorded in the enquiry conducted by him on the protest petition filed by the de facto complainant that prima facie case is made out for the offence under Section 307 r/w. 34 IPC also, against the accused, he ought to have taken cognizance of the case under Section 307 r/w 34 of I.P.C. also to try the said offence also along with the offence under Section 324 r/w 34 of I.P.C for which the charge sheet is filed on committal of the case for trial to the trial Court. Therefore, the impugned Official memo dated 17-02-2017 cannot be held to be valid and it is clearly unsustainable under law in the facts and circumstances of the case.
12. The legal position in this regard is not an undecided question of law. It has been well settled by an authoritative 7 pronouncement of the Apex Court. The Supreme Court in the case of Abhinandan Jha v. Dinesh Mishra1 held that the Magistrate cannot direct the Police to file a final report in a particular form or report making some persons guilty.
13. The question that fell for consideration before the Supreme Court is as to whether a Magistrate can direct the Police to submit a charge-sheet, when the Police, after investigation of a cognizable offence, has submitted a final report under Section 173 of Cr.P.C.
14. As per the facts of the case before the Supreme Court, the Police submitted a final report after investigation before the Magistrate stating that no case is made out against the accused. However, the Magistrate directed the Police to submit a charge-sheet. The Supreme Court held that a Court cannot direct Police to submit an opinion in a particular form. The Court can either accept the report or disagree with it. Despite the report of the Police, the Magistrate is satisfied that there is a case made out against the accused, the Magistrate can take cognizance of the case or he can order for re-investigation. However, the Magistrate cannot compel the Police to form a particular opinion on the investigation or to submit a final report as directed by him. It is for the Police to come to their opinion.
15. Following the ratio laid down in the aforesaid judgment of the Apex Court, the Division Bench of Kerala High Court also in the case of Shaji v. State of Kerala2 in a different 1 1968 Cri LJ 97 2 2004 Cri LJ 187 8 context while dealing with the question whether a Magistrate can order further investigation after taking cognizance of the case, incidentally held as follows:
"When a final report is filed before the Magistrate under Section 173(2), the Court may accept the report and either drop the proceedings or take cognizance of the proceedings on the basis of the report. The Court may disagree with the report. Even if the final report states that no offence has been committed, if the Magistrate feels that there are sufficient grounds for proceeding further, he can issue process against the accused and take cognizance of the case. The Court may even without accepting the report order further investigation. But the Magistrate has no power to direct the Police to file a final report in a particular form or report making some persons guilty".
16. Thus, from the ratio laid down in the aforesaid two judgments of the Apex Court and the Kerala High Court, the legal position is manifest that after the final report is filed by the Police on completion of investigation that no offence is made out against the accused, if the Magistrate disagrees with the said final report and if he is satisfied on the basis of the material available on record that a case is made out against the accused to try them for the said offences, the Magistrate can take cognizance of the case against the accused and issue process. But the Magistrate has no power, as has been done in this case by the impugned Official Memo, to direct the Police to file a fresh charge-sheet in a particular form i.e. by adding some other Section of law against the accused i.e. Section 307 of IPC.
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17. Therefore, in view of the above settled law, the impugned Official Memo dated 17-02-2017 is clearly unsustainable under law.
18. Although the learned counsel for the petitioner would submit that the enquiry conducted by the learned Magistrate on a protest petition filed by the de facto complainant is to be treated as a complaint under Section 200 Cr.P.C. and as such, the said complaint for which the cognizance of case was taken under Section 307 r/w 34 of I.P.C. has to be clubbed with the police case, for which the charge sheet is filed under Section 324 r/w 34 of I.P.C. under Section 210 of Cr.P.C. and joint trial has to be conducted in respect of both the complaint and the police report, the said contention cannot be countenanced.
19. A reading of Section 210 of Cr.P.C. makes it clear that when in a case instituted otherwise than on a police report, which is a complaint case, it is made to appear to the Magistrate that during the course of the inquiry or trial, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate has to stay the proceedings of such inquiry or trial and call for report on the matter from the police officer conducting the investigation. If a report is made by the investigating police officer under section 173 Cr.P.C. and if cognizance of any offence is taken on the said report against any person who is an accused in the complaint case also, the Magistrate can try both the complaint case and the case arising out of the police report, together, as if both the cases were instituted on a police report.
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20. Therefore, this is not the situation where, originally the case was instituted by way of filing a complaint and the enquiry of the said case disclosed that a case was also registered by the police in connection with the said case, to call for any report from the police to try both the cases together. In fact, as the Magistrate has now taken cognizance of the case under Section 307 r/w 34 of I.P.C. also on the protest petition filed by the de facto complainant, as held already in the foregoing discussion that the learned Magistrate has to commit the case to the Court of Session along with the offence under Section 324 r/w 34 of I.P.C., for which charge sheet is filed, for trial, as the offence under Section 307 of I.P.C. is triable by Court of Session.
21. In the result, the Criminal Revision Case is partly allowed, setting aside the Official Memo dated 17-02-2017 issued by the learned Magistrate returning the charge sheet with a direction to the Investigation Officer to add Section of Law under Section 307 r/w 34 of I.P.C. However, the Order dated 23-01-2017 allowing the protest petition after having found that there is a prima facie case against A-1 to A-5 for the offence under Section 307 r/w 34 of I.P.C. as per the sworn statements of PW.1 to PW.3 is hereby upheld. Therefore, the learned Magistrate has to commit the said offence under Section 307 r/w 34 of I.P.C. along with the offence under Section 324 r/w 34 of I.P.C., for which the charge sheet is filed, to the Court of Session, for trial, as the offence under Section 307 of I.P.C. is exclusively triable by Court of Session.
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As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 18-12-2019 ARR 12 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL REVISION CASE No.573 OF 2017 Date : 18-12-2019 ARR