Andhra HC (Pre-Telangana)
Yelamanchili Chinnmai Sai Kiran @ Siva ... vs 1. Syed Athwar Rahaman 2. The State Of ... on 14 August, 2012
Author: Samudrala Govindarajulu
Bench: Samudrala Govindarajulu
HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5491 of 2012 14.08.2012 Yelamanchili Chinnmai Sai Kiran @ Siva Kimar 1. Syed Athwar Rahaman 2. The State of A.P., rep by Public Prosecutor,High Court of A.P., Counsel for the Petitioners: Sri T.Ravi Kimar Counsel for the Respondents: Additional Public Prosecutor <Gist : >Head Note: ? Cases referred: 1 2004(6) ALD 769 (LB) 2. 2003(2) ALD 476 (DB) 3 AIR 2009 (NOC) 477 (A.P.) 1 2011(1) ALD 244 (DB) O R D E R:
The petitioner/A.1 is accused of offences punishable under Sections 447, 427 IPC and Section 5 of the Land Grabbing (Prohibition) Act, 1982. The 1st respondent is Deputy General Manager (H.R.), HMT Machine Tool Limited, Praga Division, Balanagar, Cyberabad. He gave report in his official capacity to the police against the petitioner and others. After completing investigation, the police filed charge sheet in this crime before the Court. In the charge sheet, the Court in which it was filed is described as "Principal Junior Civil Judge-cum- Special Court for Land Grabbing Act: L.B.Nagar - Cyberabad".
2. In the charge sheet, it is alleged inter alia that A.1 is doing real estate business and that A.2 has got close acquaintance with A.1 since a long time and that A.1 observed the land with fully grown up trees in the premises of HMT Machine Tools Limited, Praga Division and hatched a plan to grab the said land for its disposal to innocent purchasers by dividing the same into plots with an intention to gain wrongful income and cause wrongful loss to the Government and contacted his friend A.2 to extend his support by explaining his plan to develop the said land into open plots and that A.2 accepted to arrange labour for cutting the trees in the land and that A.1 and A.2 engaged A.3 and A.4 to cut fully grown up trees existed in the land of approximately Ac.4.00 and that they got about 300 trees cut with an intention to grab the Government land which was allotted to Praga Tools Limited.
3. Placing reliance on decisions of larger bench of this Court in Hindusthan Aeronautics Employees Co-operative Housing Society Limited v Special Court1 and Division Bench of this Court in Shalivahana Builders Private Limited v Sri Ganapathy Co-operative Housing Society2, it is contended by the petitioner's counsel that attempt to grab land does not amount to land grabbing as defined under Section 2(e) of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (in short, the Act). The said decisions were rendered in relation to civil proceedings before the Special Court under the Act when the applicant therein sought for grant of injunction against attempt to dispossess the land. The said decisions may not be applicable in a Criminal Court wherein the allegations are that A.1 and others entered into the land in question and have cut about 300 fully grown up trees in the land. It is only for that reason the police filed charge sheet against the accused not only for the offence under Section 5 of the Act but also under Sections 447 and 427 IPC. According to the prosecution, there is accomplished criminal trespass into the land and accomplished mischief by way of cutting about 300 grown up trees in the said land.
4. The pronouncement in Valluri Sitamahalakshmi v Sarchandra Environ Private Limited3 of Division Bench of this Court is equally not applicable to a criminal case. The said decision was rendered in relation to a complaint/application made before a Special Court under Section 8 of the Act.
5. It is contended by the petitioner's counsel placing reliance on K.Sruti v P.R.Rajeswari4 of Division Bench of this Court that taking cognizance of offences under Sections 427 and 447 IPC is beyond jurisdiction of the Special Court inasmuch as Section 9 of the Act authorizes the Special Court to exercise powers of a Court of Session while dealing with offences under the Act. In my opinion, the petitioner's counsel simply relied upon certain case law without having regard to constitution of various types Courts and Tribunals under the Act.
6. The Act envisages three judicial fora for redressal under various provisions. They are a) Special Court, b) Special Tribunal and c) Judicial Magistrate of the First Class. A Special Court is constituted under Section 7 of the Act. The Special Court consists of a Chairman and 4 other members. Chairman of the Special Court is a person who is or has been a Judge of a High Court. Out of 4 members in the Special Court, two members are persons who are or have been District Judges and they are referred as Judicial Members, and two other members are persons who hold or have held a post not below the rank of a District Collector and they are referred as revenue members. Powers of the Special Court are set out in Section 9 of the Act. It makes provisions of the Code of Civil Procedure 1908, the Andhra Pradesh Civil Courts Act, 1972 and the Code of Criminal Procedure, 1973 applicable to the proceedings before the Special Court insofar as they are not inconsistent with the provisions of the Act. It is further provided therein that the Special Court is deemed to be a Civil Court or a Court of Session as the case may be and the Special Court has all the powers of a Civil Court and a Court of Session. It is only while interpreting Section 9 of the Act, division Bench of this Court in K.Sruti (4 supra) held that taking cognizance of offences under IPC is beyond jurisdiction of the Special Court.
7. Special Tribunal is defined under Section 2(i-b) of the Act as meaning a Court of the District Judge having jurisdiction over the area concerned and includes Chief Judge, City Civil Court, Hyderabad. Court of the District Judge is a Civil Court. The appellate authority for a decision given by Special Tribunal is the Special Court as provided under Section 7A (3) of the Act.
8. Section 11 of the Act provides for trial of offences and it reads as follows:
"11. Power to try offences:- Notwithstanding anything in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be tried by a magistrate of the first class specially empowered by the Government in this behalf."
Section 11 of the Act empowers the Government to specify or notify a Magistrate of the First Class under the Act for trial of every offence punishable under the Act. In accordance with Section 11, the Government notified a Magistrate of the First Class in each District for trial of offences under the Act. Insofar as Cyberabad in Ranga Reddy District is concerned, Principal Junior Civil Judge who is also a Judicial Magistrate of the First Class is notified or specified by the Government under Section 11 of the Act for trial of offences under the Act. Simply because the Police Officer who filed the charge sheet in the lower Court described that Court as Principal Junior Civil Judge-cum-Special Court under the Land Grabbing Act, the said Court cannot become a Special Court under Section 7 of the Act. It is only a designated Magistrate Court under Section 11 of the Act by the State Government for trial of offences punishable under the Act. Apart from designating that Court under Section 11 of the Act, that Court is a Court of Judicial Magistrate of the First Class in any event. Therefore, the lower Court by virtue of its original jurisdiction can take cognizance of the offences under Sections 447 and 427 IPC under the Code of Criminal Procedure, 1973 and by virtue of being a notified Court or a designated Court under Section 11 of the Act, is competent to take cognizance of the offence under Section 5 of the Act. Therefore, contention of the petitioner's counsel that the lower Court has no jurisdiction to take cognizance of the offences under IPC as well as under the Act, falls to the ground.
9. No other point is urged by the petitioner's counsel before this Court. All the other points noted in the grounds of this Criminal Petition are applicable in case of a complaint/application before the Special Court constituted under Sections 7 of the Act and exercising powers and functions under Section 8 of the Act and not in relation to the proceedings before a notified or designated Magistrate under Section 11 of the Act.
10. In the result, the Criminal Petition is dismissed.
_____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 14th August, 2012