Telangana High Court
Mr. K. Raghava Ramana And 2 Others vs The State Of Telangana And Another on 11 July, 2023
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1761 of 2023
ORDER:
1. The petitioners/ accused 2 to 4, who are Advocates filed civil suit on the instructions of A1 against the respondent/ defacto complainant herein, who is the first defendant in the suit O.S.No.4198 of 2022. The said suit was filed by petitioners for perpetual injunction representing the plaintiffs restraining the defendants from interfering and dispossessing the plaintiffs' peaceful possession and enjoyment over the suit schedule property.
2. The plaintiff No.1 is Andhra Pradesh Sarvodaya Mandal, Gandhi Bhavan and plaintiff No.2 is its member Dr.G.Rajender Reddy/A1 in the present case. The defendants in the suit are complainant/Shankar Naik (Defacto complainant) and Gandhi Bhavan Trust, Gandhi Bhavan rep. by its Managing Trustee K.Chandra Shekar. Petition was filed under Order 39 Rules 1 and 2 r/w Section 151 CPC praying for an exparte ad-interim injunction in favour of the plaintiffs. The suit was filed in the Court of XX Junior Civil Judge, City 2 Civil Court at Hyderabad. After hearing the counsel for the plaintiffs, the Court passed order dated 28.09.2022 in I.A.No.911 of 2022 in O.S.No.4198 of 2022 granting ad- interim injunction in favour of the plaintiffs restraining the respondents and their family members from interfering with the suit schedule property till 21.10.2022.
3. The 1st defendant, who is the complainant herein filed criminal complaint on 05.12.2022 addressed to the Inspector of Police, Police Station Mir Chowk, Hyderabad. In the said complaint, it is alleged that A1 has filed the suit with false documents. The malicious and vexatious suit was filed with the help of these petitioners who are counsels of A1, intentionally to insult and humiliate the complainant having knowledge that he is a member of Lambada community (ST). Even these petitioners having full knowledge of the case, knowing it to be false, with an intention to insult and humiliate the complainant within the public view i.e., in the open Court of law of XX Junior Civil Judge, City Civil Court, Hyderabad, argued a false case resulting in granting of ad- interim injunction in favour of A1/plaintiff. 3
4. The crux of the entire of the complaint is that the petitioners have colluded with A-1/ plaintiff and filed Suit intentionally to insult, intimidate and humiliate the complainant for the reason of the complainant belonging to Schedule Tribe (Lambada) and argued the case in the open Court which is open and in view of general public, who come to the Court.
5. Learned counsel appearing for the petitioners would submit that filing of suit on the basis of instructions given by a client will not amount to any offence, much less the offence under Section 3(1)(p)(r ) the Scheduled Castes and Scheduled Tribes (POA) Amendment Act 2016 (for short 'the Act'). The Court had passed orders on merits and granted exparte interim injunction on 28.09.2022 and thereafter on 15.02.2023, the suit was withdrawn on the basis of the instructions of A1. The contention of the complainant that for the reason of the complainant belonging to ST community, the petitioners arguing the case during the course of judicial proceedings does not attract any penal consequences. There 4 are no allegations in the complaint to disclose any insult or humiliation of the complainant by the petitioners.
6. Learned counsel further argued that Lawyers act on behalf of their clients in good faith. The competent court has not found that there was any kind of malicious, vexatious litigation and in the absence of the same, the essential ingredients of Section 3(1)(p)(r ) of the Act are not satisfied. To attract any offence under the Act, it should have been done in the presence of the complainant and even according to him, he was not present on the date of argument on 28.09.2022. Nothing is mentioned in the complaint as to what constitutes criminal intimidation, which is punishable under Section 506 of IPC. The question of attracting an offence of criminal conspiracy does not arise on the basis of suspicion of the complainant without any further evidence.
7. Learned counsel for the petitioners relied on the following judgments; i) In Abdul Rasheed Siddiqui v. State of Madhya Pradesh1, Court held that the legislative intent in 1 (1994) MPLJ 578 5 enacting S.3(1)(viii) of the Act is not to enable registration of a crime on a mere filing of a suit or criminal or other proceeding against a member of a schedule caste or scheduled tribe and without waiting for the disposal of the suit or such other proceeding. An offence can be registered only after the court dealing with the suit or criminal or other proceedings which is alleged to be false, malicious or vexatious is disposed of; ii) In B.Venkateswaran v. P.Bakthavatchalam2, the Hon'ble Supreme Court held that a complaint under SC/ST (POA) Act can be quashed if a civil dispute is sought to be converted into criminal proceedings for abuse of process of law; iii) In Asmathunnisa v. State of A.P rep.by the Public Prosecutor3 and iv) K.Venugopal Reddy v. The Deputy Superintendent of Police4, it was held that both the presence of the offender and of the victim at the time of occurrence and the place of incident is essential for an offence u/s.3(1)(x) of the Act; v) In Hitesh Verma v. 2 MANU/SC/0009/2023 3 MANU/SC/0276/2011 4 MANU/AP/0184/2015 6 State of Uttarakhand and another5, the Hon'ble Supreme Court held that the insult or humiliation should have been on account of the person belonging to SC/ST. The assertion of title over the land by either of the parties cannot be said to be due to the indignities, humiliations or harassment of a person belonging to SC/ST community. Every citizen has a right to avail their remedies in accordance with law and are at liberty to invoke the jurisdiction of the Court; vi) In A.Ganapathi v. State of Tamil Nadu6, it was held that the Act cannot be converted into a Charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens. Any harassment of a citizen by using this Act, is against the guarantee given by the Constitution; vii) In Panugoti Naga Kiran Kumar v. State of Andhra Pradesh7 , it was held that merely because FIR contains some allegations attracting provisions of SC/ST (POA) Act, it cannot refrain from examining the absurdity or 5 (2020) 10 Supreme Court Cases 710 6 MANU/TN/1276/2019 7 MANU/AP/0325/2014 7 falsity of allegations, while exercising powers under S.482 Cr.P.C; viii) In Arun Thakur v. State of Chhattisgarh8, it was held that if the petitioner in his capacity as advocate in discharge of his professional duty on the instructions of his client incorporated the said averment of the plaint filed in the civil suit, his acts are bona fide, and he cannot be fastened with criminal liability; ix) In G.Narayan Reddy v. P.Sitapathi9, it was held that even the presence of malice will not override the presumption of good faith where the statement made was obviously necessary in the interests of the client and where the lawyer could not omit it without gravely imperiling the interests of his client and would in fact not be discharging his duty to his client unless he made it; x) In the case of Central Bureau of Investigation, Hyderabad v. K.Narayana Rao10, the Hon'ble Supreme Court held that the essence of criminal conspiracy is that there must be an Agreement to do an illegal act. The offence of conspiracy 8 MANU/CG/0352/2019 9 MANU/AP/0333/1991 10 (2012) 9 SCC 512 8 cannot be established on mere suspicion and surmises which are not supported by cogent and acceptable evidence. There must be a specific reference to the role of the person arraigned as a co-conspirator along with the other conspirators.
8. On the other hand, learned counsel appearing on behalf of the complainant would submit that in the society, the persons belonging to SC and ST community were looked down upon and insulted and humiliated. There were several examples and one such example is the way in which a judge of the Calcutta High Court was humiliated and ill-treated by the Judges of the Hon'ble Supreme Court. He also submitted that few advocates who belong to 'Reddy' community and higher caste people were having all the briefs.
9. This Court cautioned the learned counsel appearing for the complainant not to advance such arguments. However, learned counsel had repeatedly stated that the higher caste people were humiliating and insulting the SC & ST people. On repeatedly insisting to stick to the facts of the case, 9 learned counsel for the complainant submitted that a false suit was filed with fabricated documents.
When questioned by the Court, as to who according to the complainant fabricated the documents, the counsel replied that it was A1 who fabricated the documents to grab Acs.2000 acres of patta land. A1 was involved in several criminal cases. In the present circumstances, when suit was filed with fabricated documents it is for the police to investigate and to know how orders were obtained by filing false suits. He further submitted that these petitioners have intentionally ill-advised the plaintiff to file the present suit and argued the case knowing it to be false.
10. Learned counsel further submitted that it is for the police to file charge sheet and thereafter, the petitioners can file a discharge application. In the present facts, the complaint makes out an offence under Section 120-B and 506 of IPC and also under Section 3(1)(p)(r ) of the Act. After registration of the FIR, memo was filed into the Court and suit was withdrawn, which reflects the falsity of the suit filed against the complainant. He further argued that this Court 10 ought not to have listed the matter under the caption 'for orders' and thereafter under the caption 'part heard', even before calling for the record in FIR No.243 of 2022 from the Investigating Officer, Mir Chowk Police Station. Counsel filed 92 page written submissions initially and again a 49 page additional written submissions are filed.
11. Briefly, it is stated in the written submissions that the 1st petitioner being a Senior Advocate, it was his duty to verify the documents before drafting defamatory and malicious plaint. It is further stated in the counter that the members of the legal profession are under no duty to make any scandalous charges either against Judges or the opposite parties on the mere wish of their clients and are not puppets. No direct evidence is needed to infer conspiracy as observed in the case of Ram Narayan Popli v. CBI ((2003) 3 SCC 641). A conspiracy is hatched in secrecy and it has to be inferred from the circumstances that conspiracy has been entered into between the members. He relied on the judgments of Hon'ble Supreme Court and also High Courts in support of his contentions regarding the offence being made out under 11 the provisions of SC & ST (POA) Act and FIR's cannot be quashed and the Courts shall exercise powers under Section 482 of Cr.P.C very sparingly.
12. In Shiv Narayan Laxmi Narayan Joshi and others v. State of Maharashtra and others11, the Hon'ble Supreme Court held that under Section 10 of the Evidence Act held that the act of one conspirator becomes the act of another. He relied on the judgment of High Court of Kerala in the case of Rosamma Thomas v. Circle Inspector of Police12, Bodasingi Satyanarayana v. State of Andhra Pradesh13 and Swaran Singh and others v. State through Standing Counsel14 and several other judgments. On the basis of the said judgments, it is the case of the respondent/complainant that quashing of FIR should be resorted to in rarest of rare cases. Learned counsel relied on 73 judgments mentioned in the written submissions containing 92 pages. In the 11 AIR 1980 Supreme Court 439 12 1999 Crl.L.J 1666 13 2004 Crl.L.J 803 14 2008 Crl.L.J 4369 12 additional written statement, details of ten FIRs were filed to show that A1 was involved in the said cases.
13. According to the Counsel, the averments made in the compliant with regard to insulting the complainant and false submissions being made in open Court, prima facie attract offences under SC ST (POA) Act and also for criminal intimidation punishable under section 506 of IPC. To conclude, A1 is a habitual offender who fabricated documents and these petitioners have filed a false suit against complainant, for which reason, investigation has to go on.
14. The relevant provisions are extracted hereunder:
"3.Punishments for offense of atrrocities:(1)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:...
(p) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."
"Section 506 of IPC: Punishment for criminal intimidation:
Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to 13 impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
15. An Advocate representing his client prepares a plaint on the basis of instructions given by the client and also documents produced in support of his case. The contents of the affidavit are drafted on the basis of client's instructions and the client, after going through the affidavit signs on every page of the affidavit and also verifies the contents stating that whatever is mentioned in the plaint are true and correct to their knowledge, information and belief.
16. Having filed the case before the Court, the Advocate argues in support of his client's claim either for injunction or for any other relief and tries to convince the court on the basis of documents provided by the client and having done research, supplies judgments urging the Court to grant relief as prayed for.
17 Admittedly, on the date of argument, complainant was not present.
14
18. It is not mentioned in the complaint as to who argued the case and what was argued by the petitioners, which would attract any of the ingredients of Act. Undoubtedly, a Court is a public place and within public view. However, the arguments advanced by the learned counsel in the open Court may be subject to any civil or criminal proceedings, if such comments are made deliberately to either insult or humiliate a person. In the normal course, the Presiding Officer of the Court will not entertain any such insulting, derogatory or malicious submissions being made by the counsel.
19. A person should have instituted a false, malicious or vexatious suit or criminal or other proceedings against a member of the Scheduled Caste or Scheduled Tribe. The suit was instituted by A1 and as professionals, these petitioners were representing A1 before the Court. As already stated, the suit was filed on the basis of the instructions and documents provided by A1. It cannot be said that the Advocates representing his clients on behalf of the plaintiff in the suit, instituted a false case. The facts are provided by the plaintiff. 15 Advocate prepares a summary of law relied upon to advance the case of his client before the Court. The role of an Advocate is confined to argue the relevant legal position vis- a-vis the facts of the case as instructed by the client. Such arguments advanced on behalf of plaintiff will not amount to either abusing or insulting any member of the SC or ST caste even if the defendant belongs to SC/ST community, unless specific averments are made in a complaint for the Court to prima facie draw a conclusion of an offence under SC ST Act being made out.
20. The Hon'ble Supreme Court held in State of Haryana and others v. Ch.Bhajan Lal and others15 that (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 uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not 15 1992 AIR 604 16 disclose 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 Act concerned (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 Act concerned, 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. In the case of State of Andhra Pradesh v. Golconda Linga Swamy and another16, it is observed and held as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties 16 Appeal (Crl.) No.1180 of 2003, 27.07.2004 17 imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts."
21. The allegations in the complaint are made on assumptions that the petitioners, who are Advocates might have insulted the defendant/complainant in the open Court. Criminal complaint cannot be instituted on the basis of assumptions. Not a single averment is made in the entire complaint as to what was spoken by these petitioners in the Court and what constituted any of the offence under SCs & STs (POA) Act.
22. The argument of the Learned Counsel for the Respondent that the police have to investigate as to how the order was passed by the Civil Court is unacceptable. Police investigation cannot be an appellate forum to decide the correctness or otherwise of a Civil Court's order. Police can only investigate into any document that has been fabricated and filed into a Court. No details of any document being fabricated are mentioned in the complaint. 18
23. In Gulam Sarbar v. State of Bihar (now Jharkand)17 the Hon'ble Supreme Court held as follows:
"Criminal conspiracy-Essential ingredients:-The essential ingredients of criminal conspiracy are: (i) an agreement between two or more persons; (ii) agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Mere knowledge or discussion or generation of a crime in the mind of the accused, is not sufficient to constitute an offence."
In the present case, learned counsel for the respondent/complainant has been repeatedly stating that the petitioner/Advocates have entered into conspiracy to file a false suit. As already discussed in the above paragraphs, an Advocate propagates his client's rights before a Court on his instructions. There is nothing in the complaint even remotely suggest that the petitioner/accused in any manner have done any illegal act by filing the suit against the complainant.
24. In view of above discussion, the proceedings against petitioners/A2 to A3 in FIR No.243 of 2022 on the file of Mir Chowk Police Station, Hyderabad are hereby quashed. 17
2014 Cri.L.J.34 (SC) 19
25. Accordingly, the Criminal Petition is allowed. Consequently, miscellaneous applications, if any, shall stand closed.
________________ K.SURENDER, J Date: 11.07.2023 kvs 20 HONOURABLE SRI JUSTICE K.SURENDER Criminal Petition No.1761 OF 2023 Date:11.07.2023 kvs