Andhra Pradesh High Court - Amravati
Kandikunta Venkata Prasad vs State Of Andhra Pradesh on 18 November, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION NO.5108 OF 2020
ORDER:
This criminal petition is filed under Section 482 of Criminal Procedure Code (for short "Cr.P.C.") to quash the proceedings in S.T.C.No.380 of 2019 on the file of Special Judicial Second Class Magistrate, Kadiri, Ananthapuram, registered for the offences punishable under Section 188 of Indian Penal Code (for short "I.P.C.").
The Commissioner, Kadiri Municipality addressed a letter to the Station House Officer, Urban Police Station, Kadiri in ROC No.365/2015/C1 dated 25.03.2019 stating that the first petitioner has filed nomination as TDP Candidate for Kadiri Assembly Constituency, filed nomination in the office of the Returning Officer and Revenue Divisional Officer, Kadiri on 25.03.2019 and during the Rally, three cranes have been used unauthorizedly in the areas violating the Code of conduct. It is further stated that rally was conducted at Indira Gandhi Circle-1 Crane, Ambedkar Cricle-2 Cranes and the road was fully covered with cranes caused obstruction to free flow of traffic and the said act is contrary to the instructions issued by the Election Commission of India. On the basis of the above allegations, he requested the police to take necessary action for violation of the Model Code of Conduct of the first petitioner for Kadiri Assembly Constituency. Basing on the said complaint, the police registered a case in Crime No.70 of 2019 on the file of the Station House Officer, Kadiri Urban Police Station, for the offence punishable under Section 188 of I.P.C. In the said crime, the first petitioner was shown as sole accused. Questioning MSM,J Crl.P._5108_2020 2 the registration of crime, the first petitioner filed Crl.M.P.No.5456 of 2019 seeking quashment of the complaint and during pendency of the case, the police filed final report. Basing on the same, the learned Judicial First Class Magistrate has taken cognizance of the case against the petitioners herein and the same is numbered as S.T.C No.380 of 2019 on the file of Special Judicial Second Class Magistrate, Kadiri.
The main contention of the petitioners is that, even if the allegations made in the complaint are taken on its face value, the same do not constitute an offence punishable under Section 188 of I.P.C. The very registration of crime by police and filing charge sheet is contrary to Section 195 (a) (i) of Cr.P.C. The present case is registered against the first petitioner only and his followers, where the first petitioner was contesting in the elections and Petitioner Nos. 2 and 3 are his followers and the incident cannot be attributed to the petitioners, thereby the proceedings are liable to be quashed by this Court.
The respondents did not file counter.
Sri O.Manohar Reddy, learned counsel for the petitioners, would contend that very registration of Crime No.70 of 2019 on the file of Station House Officer, Kadiri Urban Police Station, for the offence punishable under Section 188 of I.P.C. is a serious illegality as the same is hit by Section 195 (1) (a) (i) of Cr.P.C, though, the Station House Officer is entitled to investigate into the crime registered for the offence punishable under Section 188 of I.P.C. So also it is a cognizable offence, the Court cannot take cognizance in view of the specific bar contained under Section 195 (1)(a)(i) of Cr.P.C., requested to quash the proceedings against the petitioner.
MSM,J Crl.P._5108_2020 3 Sri Dushyant Reddy, learned Additional Public Prosecutor for the State, would submit that the bar is only against taking cognizance by the Court and not against registration of crime for the offence punishable under Section 188 of I.P.C. and investigation by the investigating agency. Therefore, at this stage, the proceedings cannot be quashed by exercising power under Section 482 of Cr.P.C., requested to dismiss the petition.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether the proceedings in Crime No.70 of 2019 (F.I.R.) on the file of the Station House Officer, Kadiri Urban Police Station are liable to be quashed for violation of Section 195 (1) (a) (i) of Cr.P.C.?
P O I N T:
Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent MSM,J Crl.P._5108_2020 4 injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice.
To give effect to any order under Code means, the first class of order, which the section embraces are orders that may be necessary to give effect to any order under this Code. When a Court has authority to make an order, it must also have the power to carry out the order into effect. The power to enforce obedience to the mandates of the Court necessarily springs from the very existence of the authority to issue the mandates and, if that power is not expressly given by the statute, it must be deemed to be inherent in the Court, vide "Emperor v. Sukhdeo1".
To prevent abuse of the process of any Court, the authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority, so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse in the process of the Court to allow a suitor to litigate over again the same question which has been already decided against him. The High Court would, in the exercise of its inherent jurisdiction, reject an application for the transfer of a criminal case, where such an application based upon the same facts had already been refused. The words "process" is a general word meaning, in effect, anything done by the Court. In exercise of the powers under this section the 1 1930 Lah 465 31 Cr LJ 482 MSM,J Crl.P._5108_2020 5 High Court would be justified to quash the proceedings if it finds that the institution or continuance of criminal proceedings amounts to abuse of the process of the Court or if quashing of those proceedings would otherwise secure the ends of justice. Where there is no material before the Magistrate on the basis of which he can issue process against the accused to stand trial, it will be gross abuse of the process of the Court if the accused is put to trial, hence the proceedings should be quashed at the threshold. Similarly, where it is not shown that there is any abuse of process of the Court, the proceeding will not be quashed. The jurisdiction of the High Court in quashing the complaint or the first information report is very limited. The High Court is justified in quashing the complaint when no offence is made out on the allegations made in the compliant or the documents accompanying it per se.
The words used in under Section 482 of Cr.P.C "or otherwise to secure the ends of justice", the High Court has been given powers under this section, in addition to what it possesses under its Charter and Letters Patent, to interfere in order to secure the ends of justice. If the High Court feels that the ends of justice require that an order should be made in an application, although the application is not contemplated by the Code the High Court will entertain the application and make the necessary orders to secure the ends of justice. The Court while deciding a law point may decide it rightly or wrongly. An application under this section will not lie on the ground that the Court has decided a point of law incorrectly and has resulted in gross injustice to the applicant.
MSM,J Crl.P._5108_2020 6 Vide "Ramji Singh v. State2". Thus, the inherent powers of the Court can be exercised sparingly in extraordinary circumstances and with great circumspection.
Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows:
In "R.P. Kapur v. State of Punjab3", the Apex Court laid down the following principles:
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;
(iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is 2 1972 Cr LJ 1545 (A) 3 AIR 1960 SC 866 MSM,J Crl.P._5108_2020 7 not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar4"
In "State of Haryana v. Bhajan Lal5" the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose 4 AIR 1990 SC 494 5 1992 Supp (1) SCC 335 MSM,J Crl.P._5108_2020 8 the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Keeping in view the above principles, I would like to examine the case on hand.
It is an undisputed fact that a crime was registered against the petitioners herein for the offence punishable under Section 188 of I.P.C. based on the letter ROC No.365/2015/C1 dated 25.03.2019 addressed by the Commissioner, Kadiri Municipality being Nodal Officer to the Station House Officer, Urban Police Station, Kadiri, which is as follows:
MSM,J Crl.P._5108_2020 9 "I am to inform that Sri Kandikunta Venkataprasad, TDP Candidate for Kadiri Assembly Constituency has filed nomination in the O/o Returning Officer & RDO, Kadiri on 25.03.2019. During the rally, 3 cranes has been used un-authorizedly in the following areas violating the Model Code of Conduct.
1. Indira Gandhi Circle - 1 crane
2. Ambedkar Circle - 2 cranes Further, I am to inform that during the rally, the road was fully covered which causes hurdles to free flow of traffic, which is against the instructions of the Election Commission of India, New Delhi vide ECI Letter's No.437/6/Campaign/ECI/INST/FUNCT/MCC-2015 dated 4th January, 2017.
In this connection, I enclose herewith a copy of the instructions of the Election Commission of India, New Delhi in the Manual of Model Code of Conduct for your reference.
Therefore, I request you sir kindly to take necessary action for violation of the Model Code of Conduct against Sri Kandikunta Venkataprasad, TDP Candidate for Kadiri Assembly Constituency and his followers."
During elections, model code of conduct was in force. Hence, without permission, holding meeting at Indira Gandhi Circle and Ambedkar Circle may be violation of model code of conduct and attract an offence punishable under Section 188 of I.P.C., but the main contention of the petitioners is that, in the absence of any complaint by the officer, who promulgated model code of conduct, the Court cannot take cognizance of offence in view of the specific bar under Section 195 (1) (a) (i) of Cr.P.C.
No doubt, the bar contained in Section 195 (1) (a) (i) of Cr.P.C. is against taking cognizance by the Court for the offence punishable under Section 188 of I.P.C., but not against registration of crime and investigation into it.
The specific language used in Section 195 (1) (a) (i) of Cr.P.C. is that "no Court shall take cognizance except on the complaint in MSM,J Crl.P._5108_2020 10 writing of the public servant concerned or of some other public servant to whom he is administratively subordinate" assumes importance.
The word "complaint" is defined under Section 2 (d) of Cr.P.C., which is as follows:
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
The word "police report" is defined under Section 2 (r) of Cr.P.C., which is as follows:
(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173"
It is obvious from the language used in Section 195 (1) (a) (i) of Cr.P.C. only on the basis of the complaint as defined under Section 2 (d) of Cr.P.C., the Magistrate can take cognizance, but not based on police report as defined under Section 2 (r) of Cr.P.C. read with sub-section (2) of Section 173 of Cr.P.C.
In the present case, police registered a case against the petitioner as they are competent to register crime when the Station House Officer received information about the commission of cognizable offence under Section 154 of Cr.P.C. in view of the law declared by the Apex Court in "Lalita Kumari v. Government of Uttar Pradesh6". Therefore, registration of crime and its investigation by the police is in accordance with law, but it is of no use for the simple reason that the Court cannot take cognizance of the offence on the basis of final report filed under sub-section (2) of 6 (2014) 2 SCC 1 MSM,J Crl.P._5108_2020 11 Section 173 of Cr.P.C. after completion of investigation. Hence, registration of crime under Section 188 of I.P.C. and conducting investigation into it, would not serve any purpose except wasting time of investigating agency.
In a similar circumstance, the Madurai Bench of Madras High Court in "Jeevanandham v. State" (Crl.OP (MD).No.1356 of 2018 and batch after considering the entire law on Section 188 of I.P.C. with reference to Section 195 (1) (a) (i) of Cr.P.C. concluded that the proceedings are liable to be quashed as a complaint in writing was not made to the Magistrate to take cognizance against the petitioners therein.
When a similar question came up for consideration before the Apex Court in "Daulat Ram v. State of Punjab7", it was held that in order to prosecute an accused for an offence punishable under Section 182 I.P.C, it is mandatory to follow the procedure prescribed under Section 195 of the Code, else, such action is rendered void ab initio.
The contention of the learned Additional Public Prosecutor is having substance, the ultimate object of registration of crime and conducting investigation is to prosecute the accused, but when the Court is debarred from taking cognizance on the basis of final report submitted under sub-section (2) of Section 173 of Cr.P.C., the Court cannot take cognizance. In those circumstances, investigation, if any, done after registration of crime filing of final report are useless and it amounts wastage of time of investigating agency.
7 AIR 1962 SC 1206 MSM,J Crl.P._5108_2020 12 The Bombay High Court (Aurangabad Bench) in "Shrinath Giram v. State of Maharashtra8" considered the interpretation of Section 195 of Cr.P.C. with reference to taking cognizance of the offence punishable under Sections 172 to 188 of I.P.C., concluded that on conjoint reading of the provision of Section 188 of I.P.C. and Section 195 of Cr.P.C., it is evident that if the alleged offence is punishable under Sections 172 to 188 of I.P.C, the court cannot take cognizance except on a complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate. In such peculiar circumstances, no FIR could have been registered by the police for an offence punishable under Section 188 of I.P.C.
A harmonious reading of provisions of Cr.P.C. along-with the past-precedents, it is necessary to understand the purpose of the scheme of the Code. First and foremost, it would be apposite to refer to Section-154 of Cr.P.C. which states that every information relating to the commission of a cognizable-offence shall be reduced to writing and the substance thereof shall be entered in a book to be kept by the Police Officer in the prescribed form.
The language used Section 154 of Cr.P.C. "shall be reduced into writing" obligates the police to record every information relating to the commission of a cognizable offence.
In fact, in the present case, the Station House Officer, strictly adhering to procedure under Section 154 of C.P.C., registered crime, issued F.I.R investigated into and filed final report under Section 173(2) Cr.P.C, but that would not serve any purpose in view of the law declared in "Shrinath Giram v. State of 8 2018ALLMR(Cri)325 MSM,J Crl.P._5108_2020 13 Maharashtra" and "Jeevanandham v. State" (referred supra) In "C. Muniappan v. State of T.N.9", the Apex Court observed as follows:
"20. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions."
However, there is a little conflict between Section 188 of I.P.C., Section 154 of Cr.P.C. and Section 195 of Cr.P.C., but such conflict is not set at rest. Still, the Courts are facing problem in taking cognizance of offence punishable under Section 188 of I.P.C. on the basis of police report filed under sub-section (2) of Section 173 of Cr.P.C.
In the present case, though, more than one year period is elapsed and the procedure laid down under Section 195 (1) (a) (i) of Cr.P.C. is not complied with by the concerned officer, whose promulgation of ordinance is violated i.e. code of conduct. Similar issue was elaborately considered by the Madras High Court in "Jeevanandham v. State" and "Daulat Ram v. State of Punjab"
(referred supra) quashed the proceedings against the accused therein on the ground that non-compliance of Section 195 (1) (a) (i) of Cr.P.C.9
(2010) 9 SCC 567 MSM,J Crl.P._5108_2020 14 In view of my foregoing discussion, I find that it is a fit case to quash the proceedings by applying the principles laid down in "State of Haryana v. Bhajan Lal" (referred supra).
In the result, the criminal petition is allowed. The proceedings in S.T.C.No.380 of 2019 on the file of Special Judicial Second Class Magistrate, Kadiri, Ananthapuram, against the petitioners/A1, A2 and A5 are hereby quashed.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:18.11.2020 SP