Andhra Pradesh High Court - Amravati
This Criminal Petition Is Filed By The vs State Of Uttar Pradesh1 Wherein It Is ... on 24 June, 2022
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
CRIMINAL PETITION No. 12878 of 2015
ORDER:
This Criminal Petition is filed by the petitioner/accused, under Section 482 Cr.P.C., seeking quashment of the proceedings against him in respect of Crime No.316 of 2015 of Nandyal II Town Police Station, Kurnool District, which was registered for the offences punishable under Sections 503, 504, 499, 166 IPC and Sections 66 and 67 of the Information Technology Act, 2000.
2. According to the 2nd respondent/de facto complainant, as the police did not take any action on the complaint lodged by him with Nandyal II Town Police Station against the petitioner/accused, he filed a private complaint under Sections 190 read with 200 Cr.P.C. before the Court of the Judicial Magistrate of First Class, Nandyal, on 14.09.2015. The learned Magistrate without recording his sworn statement straight away referred the complaint to the police under Section 156 (3) Cr.P.C.. It is alleged that the 2nd respondent worked as Assistant Manager in the State Bank of India and he was under suspension and an enquiry is pending against him. On 24.08.2015 when he met one Mr. Kishore Kumar Reddy, who is the owner of Honda Show Room, and asked him to pay the amount due to him, said Kishore Kumar Reddy quarrelled with him and therefore, he gave a complaint in the police station on the next day. It was reported in Andhra Jyothi Telugu daily news paper under the caption "Attack on Ex-Bank Officer by farmers". It is asserted that the petitioner communicated the said news item through his whatsapp to all the persons known to him, by addition of a tag "Pray God to give Wisdom to the 2nd respondent" with an intention to cause humiliation and to spoil his 2 NV,J Crl.P.No.12878 of 2015 reputation due to a previous land disputes between them. The mother of the 2nd respondent also felt humiliation and she expressed the same over phone to the 2nd respondent. The learned Magistrate referred the matter to the police under Section 156 (3) Cr.P.C. for investigation and a report. After investigation, the police registered the complaint as Crime No.316 of 2015 for the offences referred to above.
3. Heard Mr. Karri Murali Krishna, learned counsel for the petitioner, and learned Assistant Public Prosecutor appearing on behalf of the respondents.
4. Learned counsel for the petitioner contends that without recording the sworn statement of the 2nd respondent as per the contemplated procedure under Section 200 Cr.P.C., the learned Magistrate directly referred the matter to the police for investigation and for a report, contrary to the provisions of Sections 199 and 200 Cr.P.C. He also contends that application under Section 156(3) Cr.P.C. seeking direction for registration of FIR must be supported by an affidavit. In support of his contentions, he placed reliance on a decision of the Hon'ble Supreme Court in Priyanka Srivastava Vs. State of Uttar Pradesh1 wherein it is held as under:
"30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of 1 (2015) 6 SCC 287 3 NV,J Crl.P.No.12878 of 2015 applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
i) Learned counsel for the petitioner further contends that there are no ingredients in the complaint to attract the offences under Sections 503 and 504 of IPC as the petitioner only forwarded a report published in Andhra Jyothi Telugu 4 NV,J Crl.P.No.12878 of 2015 Daily News Paper through whatsapp to his known persons. Forwarding of such an article of a newspaper cannot be construed as the offences under Section 503 IPC.
He also contends that the alleged act of the petitioner does not attract Sections 499 504 IPC which relates to defamation and an intention to provoke breach of peace. If the 2nd respondent is aggrieved by the news item published in Andhra Jyothi Telugu Daily News Paper, he can prosecute the responsible person of that Newspaper, but not the petitioner who just forwarded the same to his near and dear. Further, the facts of the case do not disclose any offence under Sections 499 and 504 IPC. So far as the offence under Section 166 IPC is concerned which deals with disobeying of law by a public servant with an intent to cause injury to any other person, admittedly the petitioner is not a public servant and he is a businessman as per the very description given in the complaint by the 2nd respondent. Therefore, Section 166 IPC is not at all attracted in the facts and circumstances of the case. Further, there are no ingredients in the complaint to attract the offences under Sections 66 and 67 of the Information Technology Act. He, therefore, prays to quash the crime.
5. On the other hand, learned Assistant Public Prosecutor submits that with an intention to spoil the reputation of the 2nd respondent and to humiliate him due to a previous land dispute between them, the petitioner forwarded the article published in a newspaper through his whatsapp to all his known persons and thereby, he committed the offences punishable under Sections 499 IPC and Sections 66 and 67 of the Information Technology Act. Therefore, he prays that the criminal petition is liable to be dismissed.
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6. As seen from the material on record, it is apparent that the learned Magistrate without recording the sworn statement of the 2nd respondent straight away referred the complaint to the police, though it is a mandate on his part as contemplated under Section 156 (3) Cr.P.C. to record the sworn statement of the 2nd respondent before referring the complaint to the police and as held by the Hon'ble Supreme Court in Priyanka Srivastava case referred to supra.
7. Further, on a perusal of the complaint, it is apt to refer to the offences punishable under Sections 503, 504, 499, 166 IPC and Sections 66 and 67 of the Information Technology Act which read as under:
"Section 503 IPC - Criminal Intimation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alaram to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Section 504 IPC - Intentional insult with intent to provoke breach of the peace - Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be liable for punishment.
Section 499 IPC - Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will 6 NV,J Crl.P.No.12878 of 2015 harm, the reputation of such person, is said, except in the cases hereinafter, expected, to defame that person.
Section 166 IPC - Public servant disobeying law, with intent to cause injury to any person - Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be liable for punishment.
Section 66 of the Information Technology Act - Computer related offences - If any person dishonestly or fraudulently does any act referred to in Section 43, he shall be liable for punishment.
Section 67 of the Information Technology Act - Punishment for publishing or transmitting obscene material in electronic form - Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be liable for punishment."
8. A careful reading of the complaint reveals that the provisions of the aforementioned sections are not at all attracted, as rightly contended by the learned counsel for the petitioner.
9. In view of the above, this Court is of the opinion that the subject crime is liable to be quashed.
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10. Accordingly, the Criminal Petition is allowed and the proceedings in Crime No.316 of 2015 of Nandyal II Town Police Station, Kurnool District, are hereby quashed.
As a sequel, miscellaneous applications, if any, pending in the criminal petition shall stand closed.
___________________________________ VENKATESWARLU NIMMAGADDA, J 24th June, 2022 cbs 8 NV,J Crl.P.No.12878 of 2015 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA Criminal Petition No.12878 of 2015 24th June, 2022 cbs