Telangana High Court
N. Venugopal Rao vs The State Of Telangana on 10 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.5120 OF 2020
ORDER:
The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), to quash the docket order dated 20.08.2020 in C.C. No.3381 of 2020 passed by the learned V Additional Metropolitan Magistrate - cum - V Additional Junior Civil Judge, Cyberabad at L.B.Nagar by recalling the Non- bailable Warrant (NBW) issued against the petitioner.
2. The petitioner is sole accused in the said C.C.No.3381 of 2020. The offence alleged against him is under Section 420 of IPC.
3. Heard Mr. S. Surender Reddy, learned counsel for the petitioner - accused and the learned Assistant Public Prosecutor appearing on behalf of the respondent - State, and perused the entire material available on record.
4. The learned counsel for the petitioner would submit that the trial Court, at the first instance, cannot issue NBW against the petitioner and it has to issue summons to the petitioner to appear in C.C. No.3381 of 2020. Instead of doing so, the trial Court has issued NBW at the first instance which is abuse of process of law. He would further submit that the petitioner is unaware of pendency of the above said crime and also the C.C. He would further submit that in complaint cases, at the first instance, the Court should direct serving KL,J Crl.P. No.5120 of 2020 2 of the summons along with copy of complaint, and if the accused seems to be avoiding the summons, the Court, in the second instance, should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the courts proceedings intentionally, the process of issuance of NBW should be resorted to. Personal liberty is paramount and by considering the same, the trial Court ought not to have issued the NBW against the petitioner.
5. The learned counsel for the petitioner has also placed reliance on the principle laid down by the Hon'ble Supreme Court in Inder Mohan Goswami v. State of Uttaranchal1.
6. With the said contentions, the learned counsel for the petitioner sought to quash the docket order dated 20.08.2020 in C.C. No.3381 of 2020.
7. On the other hand, the learned Assistant Public Prosecutor, on instructions, would submit that the petitioner avoided to appear before the Investigating Officer and also failed to cooperate with the Investigating Officer. Therefore, the Investigating Officer, after completion of investigation, filed charge sheet for the offence under Section 420 of IPC. The same was taken on file vide C.C. No.3381 of 2020 by the trial Court. Since the petitioner is absconding from the beginning, on the note put up by the office, the trial Court has issued NBW on 19.10.2020. The petitioner instead of approaching the trial 1 . (2007) 12 SCC 1 KL,J Crl.P. No.5120 of 2020 3 Court by filing an application under Section 70 (2) of Cr.P.C. for recall of warrant, filed the present petition. The judgment relied upon by the petitioner is of no use since the petitioner did not obtain bail from the trial Court either at the crime stage or at later stage. Thus, the police have left with no option except to file charge sheet by showing him as absconding. With the said contentions, he sought to dismiss the present petition.
8. De facto complainant has lodged a complaint dated 22.05.2019 against the petitioner herein alleging that the petitioner has voluntarily cheated him. Basing on the said complaint, the Station House Officer, Balapur Police station, Rachakonda Commissionerate, registered a case in Crime No.134 of 2018 against the petitioner for the offence under Section 420 of IPC. After completion of investigation, the police have filed charge sheet and the same was taken on file vide C.C.No.3381 of 2020. In the charge sheet, it is mentioned by the police that during the course of investigation, LWs.1 to 5 are owners of open plots. The details of plots including plot number, its extent and document numbers are specifically mentioned in the charge sheet. LW.1, de facto complainant - Kokkula Mahanand, has purchased two open plots bearing plot No.104 (north part), admeasuring 100 square yards and plot No.105 (south part), admeasuring 100 square yards, making a total extent of 200 square yards in Survey Nos.120 and 121, situated at Balapur village vide document No.840 of 2011, dated 26.04.2011 from M/s. Chaitanya KL,J Crl.P. No.5120 of 2020 4 Estates and Constructions, represented by its proprietor, Mr. N. Venu Gopal Rao, the petitioner herein by paying a total sale consideration amount of Rs.3,00,000/- (Rupees three lakhs only). LW.4 - Mrs. Bandapalli Bhumeshwari also purchased plot No.107, admeasuring 200 square yards for the said sale consideration from the petitioner vide document No.839 of 2011, dated 26.04.2011, while LW.5 - Mrs. M. Kalpana purchased plot No.108, admeasuring 200 square yards for the said sale consideration from the petitioner herein vide document No.1660 of 2011, dated 03.08.2011.
9. While so, in the year 2012, the petitioner herein has also executed and registered all the aforesaid plots in favour of Mr. G. Srinivas Rao without any intimation or permission. They have discussed the said aspect with the petitioner, but the petitioner did not settle the said issue.
10. While the matter stood thus, ten (10) days back, LWs.1, 4 and 5, besides plot owner, Ashiwini Goud, made a telephone to LW.1 and informed that on 16.05.2019, SBI authorities gave paper statement about e-auction on the said plots and that Mr. G. Srinivas Rao, who got second registration on the said plots, obtained the loan by pledging the aforesaid plots. Thus, the petitioner cheated LW.1 and others dishonestly by making double registration of their plots in favour of Mr. G. Srinivas Rao with a mala fide intention. Therefore, the petitioner - accused has cheated LW.1 and others dishonestly and thereby he has committed offence under Section 420 of IPC.
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11. In the charge sheet, it is also specifically mentioned that the petitioner - accused is absconding and LW.7 visited the residence of the petitioner several times. The Investigating Officer along with his staff has searched for the petitioner, but it is of no use. The efforts made by the Investigating Officer and his staff to trace out and apprehend the petitioner - accused became a futile exercise. Therefore, the police have filed charge sheet showing the petitioner as absconding. Basing on the note put up by the office, the trial Court has issued NBW on 19.10.2020 against the petitioner - accused.
12. The petitioner herein filed the present petition to quash the docket order dated 20.08.2020 by recalling NBW issued against him in C.C. No.3381 of 2020. There is no mention about the petitioner - accused in the present petition as to the efforts made by him to recall the said NBW by filing an appropriate application before the trial Court.
13. As discussed above, the police registered the crime on 22.05.2018 in Crime No.134 of 2018 against the petitioner on the complaint lodged by the de facto complainant. Prima facie, there are serious allegations levelled against the petitioner. He has sold the plots second time to one Mr. G. Srinivas Rao after sale of the said plots to LWs.1, 4 and 5. Thereafter, the said Mr. G. Srinivas Rao has obtained loan from the bank by pledging the said document. Since the said Srinivas Rao failed to repay the loan amount, the bank has issued e-auction sale notice by invoking the procedure under SARFAESI KL,J Crl.P. No.5120 of 2020 6 Act. Thus, there are specific overt acts against the petitioner herein. The police have recorded statements of LWs.1 to 5, who are victims. After investigation, the police filed charge sheet against the petitioner. The same was taken on file. It is also specifically mentioned in the charge sheet by the police that their efforts to apprehend the petitioner became futile exercise and shown the petitioner as absconding. As rightly contended by the learned counsel for the petitioner that instead of approaching the trial Court by filing an application under Section 70 (2) of Cr.P.C., for recall of NBW, the petitioner filed the present petition to quash the docket order dated 20.08.2020 in C.C. No.3381 of 2020.
14. The learned counsel for the petitioner has relied upon the principle laid down in Arumilli Uday Acharya Chowdary v. The State through SHO, PS Gandepally, East Godavari District, A.P.2 In the said judgment, the principle held by the Hon'ble Supreme Court in Inder Mohan Goswami1 was referred. In the said decision, the Apex Court held that the issuance of NBW involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the Courts have to be extremely careful before issuing NBW. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes, in the larger interest of the public and the State, 2 . Unreported Judgment dated 07.11.2017 in Crl.P. No.10136 of 2017 KL,J Crl.P. No.5120 of 2020 7 it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the NBW should be issued.
15. NBW should be issued to bring a person to Court when summons of bailable warants would be unlikely to have the desired result. The Apex Court could be when; i) it is reasonable to believe that the person will not voluntarily appear in Court; or ii) the police authorities are unable to find the person to serve him with a summon; or iii) it is considered that the person could harm someone if not placed into custody immediately.
16. As far as possible, if the Court is of the opinion that a summon will suffice in getting the appearance of the accused in the Court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The Court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
17. In the complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is KL,J Crl.P. No.5120 of 2020 8 avoiding the court's proceedings intentionally, the process of issuance of the NBW should be resorted to. Personal liberty is paramount, therefore, the Hon'ble Apex Court cautioned Courts at the first and second instance to refrain from issuing NBW.
18. The Apex Court further held that issuance of NBW in the first instance without using the other tools of summons and bailable warrant to secure attendance of such a person would impair the personal liberty guaranteed in every citizen under the Constitution. It further held that power being discretionary must be exercised judiciously with extreme care and caution. The Court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non- bailable warrants should be avoided.
19. In view of the law laid down by the Hon'ble Apex Court, there is no prohibition to issue NBW or BW against the accused for his absence. The Hon'ble Apex Court only cautioned the Courts at the first and second instance to refrain from issuing NBW. Both, the personal liberty of an individual and interest of society in maintaining law and order are extremely important for survival of a civilized society. In the larger interest of public, and the State, it becomes imperative to curtail freedom of an individual for a certain period, KL,J Crl.P. No.5120 of 2020 9 only then the NBW should be issued. Thus, the Courts have to properly scrutinize the facts and complete application of mind.
20. As discussed supra, the allegation against the petitioner herein is under Section 420 of IPC. There are serious allegations against the petitioner herein. He has not co-operated with the Investigating Officer. Despite making efforts, the Investigating Officer and his staff could not trace out the accused and could not apprehend him. The said facts are specifically mentioned in the charge sheet. Considering the said facts, on the note put up by the office, the trial Court has issued NBW on 19.10.2020 against the petitioner - accused.
21. In Arumilli Uday Acharya Chowdary2, the Judicial Magistrate of First Class, Peddapuram, has issued warrant on the ground that as there is no chance to trace out the accused in near future, the Investigating Officer has completed investigation, filed charge by showing the accused as absconding since commission of offence and there is no possibility to trace out them in Hyderabad as they voluntarily changing their residential address from time to time in Hyderabad City. Thus, the Magistrate has issued NBW to the accused therein. In the said case, the main challenge was to the order is that, when cognizance is taken against the accused for various offences, the Court below has to issue summons. But, instead of issuing summons, the Court below issued NBWs. Therefore, by relying upon the principle held in Inder Mohan Goswami1, the High KL,J Crl.P. No.5120 of 2020 10 Court held that the order passed by the Judicial Magistrate of First Class, Peddapuram issuing NBWs against the petitioners therein is not proper exercise of discretion that vested on him and the same was set aside, treating the same as summons. Thus, the petitioners were directed to appear before the Court below on the date fixed by the Court below.
22. In view of the above stated settled legal position, it is trite to refer the provisions of Code of Criminal Procedure, 1973. Chapter
- VI deals with 'processes to compel appearance'. As per section 73 of Cr.P.C., the Chief Judicial Magistrate or a Magistrate of the First Class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and he is avoiding arrest.
23. In the present case, the offence alleged against the petitioner herein is under Section 420 of IPC, and it is non-bailable. Despite efforts, the police could not arrest the petitioner and he has not cooperated with the Investigating Officer. He has not obtained regular bail at the crime stage. Therefore, the police have completed investigation and filed charge sheet showing the petitioner - accused as absconding. There are serious allegations against the petitioner. Therefore, considering the said facts and also on the note up by the office, the trial Court has issued NBW against the petitioner - accused.
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24. It is also apt to note that the petitioner herein instead of filing an application under Section 70 (2) of Cr.P.C. seeking to recall of NBW issued against him, approached this Court by way of filing the present petition to quash the docket order 20.08.2020 in C.C. No.33381 of 2020 by recalling NBW issued against him. As discussed supra, in Inder Mohan Goswami1, the Hon'ble Apex Court cautioned the Courts to examine the facts of the case with judicious mind. Both, personal liberty of an individual and the interest of society in maintaining law and order are extremely important for survival of civilized society. Sometimes, in the larger interest of public and State, it becomes absolutely imperative to curtain freedom of an individual for a certain period, only then NBW should be issued. Thus, discretion is given to the Courts below.
25. In Arumilli Uday Acharya Chowdary2, there is no reference with regard to power of the trial Court under Section 73 of Cr.P.C. One paragraph in Inder Mohan Goswami1 was referred to, and the principle laid down in the said decision was not applied to the facts of the said case.
26. As discussed above, there are serious allegations against the petitioner herein. He has registered the plots second time to Mr. G. Srinivasa Rao, who in turn, obtained loan by mortgaging the said plots. The bank has initiated proceedings under SARFAESI Act by issuing e-auction notice. Thus, he has cheated LW.1 and others dishonestly by making double registration of his plots in favour of Mr. KL,J Crl.P. No.5120 of 2020 12 G. Srinivasa Rao, with a mala fide intention. He has avoided to co- operate with the Investigating Officer.
27. In view of the above said discussion, according to this Court, there is no error, much less manifest error in issuing NBW against the petitioner in C.C. No.3381 of 2020 by the trial Court. Thus, the petitioner herein failed to establish any ground or circumstance to quash the docket order dated 20.08.2020 in C.C. No.3381 of 2020 and to recall the NBW issued against him by the trial Court, and the present petition is liable to be dismissed.
28. Accordingly, the present Criminal Petition is dismissed. However, liberty is granted to the petitioner - accused to approach the trial Court to file an application under Section 70 (2) of Cr.P.C. seeking to recall the NBW issued against him. The trial Court shall consider the same and pass appropriate orders strictly in accordance with law on merits.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 10th November, 2020 Mgr