Andhra Pradesh High Court - Amravati
Somula Venkatasubba Reddy vs The State Of Andhra Pradesh on 28 October, 2022
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HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.3314 of 2018
ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code ('Cr.P.C.' in short), by the petitioner/de facto complainant, aggrieved by the orders dated 19.10.2018 passed in CFR No.912 of 2018 in Crime No.54 of 2017 on the file of the Court of the learned Judicial Magistrate of First Class, Koilakuntla, whereby and whereunder the protest petition filed by the petitioner/ de facto complainant raising objections against deletion of the names of A-5, A-7 and A-8 from the array of the accused in the charge sheet, was dismissed.
2. The Criminal Revision Petitioner is the de facto complainant, the respondent Nos. 2 to 9 are accused/A-1 to A-8 and respondent No.1 is the State/complainant in PRC No.10 of 2018 on the file of the learned Judicial Magistrate of First Class, Koilakuntla, concerned to Crime No.54 of 2017 of Koilakuntla Police Station. 2
3. The de facto complainant/ Revision Petitioner gave a report to the Sub Inspector of Police Koilakuntla alleging that there were disputes among him and his cousins in relation to a site situate in their village, which was partitioned by their elders, and there was a quarrel among them about an year prior to the incident and on account of the same the accused bore a grudge against the de facto complainant. It is further stated that on 24.05.2017 at 6.00 p.m., while the de facto complainant along with his brother Somula Nageswara Reddy (deceased) and Somula Rajasekhar Reddy was going to Grama Chavidi and when they reached infront of the house of Somula Narayana Reddy(A-1), the said Somula Narayana Reddy (A-1) and his son Vasudeva Reddy (A-2) armed with axes attacked the deceased Narayana Reddy and when they were hacking the deceased, Somula Lakshminarayana Reddy (A-5) came and caught hold of the legs of the deceased to prevent him from being escaped. In the meantime, Somula Rammohan Reddy (A-3) and his son Somula Surendra Reddy (A-4) came armed with sticks and beat the deceased on head and face and caused injuries. Then, A-6, Somula lakshmi Devi, wife of Rammohan Reddy, A-7 & A-8, Somula Lakshmi Sunitha and Somula Vaidehi, daughters of the said Rammohan Reddy, came and beat the deceased 3 with hands and legs shouting to kill the deceased. When the de facto complainant and Somula Rajasekhara Reddy tried to rescue the deceased, A-6 to A-8 beat them with hands and legs. When some villagers came there, the accused went to the house of Lakshminarayana Reddy and thereafter they escaped in the tractor of the said Lakshminarayana Reddy. The deceased was shifted to Government Hospital, Kurnool and the doctors declared him brought dead. The report of the de facto complainant was registered as a case in Crime No. 54 of 2017 for the offence punishable under Section 302 read with 34 the Indian Penal Code.
4. After completion of investigation, the Inspector of Police, Koilakuntla Circle filed charge sheet by deleting A-5, A-7 and A-8 from the array of the accused stating that the investigation revealed that they did not participate in commission of offence along with other co- accused.
5. Aggrieved by the said deletion of A-5, A-7 and A-8, the de facto complainant/ Revision Petitioner filed protest petition in CFR No.912 of 2018 before the Court below and the said protest petition was dismissed. Assailing the said dismissal, the de facto complainant preferred the instant Criminal Revision Case.
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6. It is relevant here to note that, earlier, this Criminal Revision Case was allowed by a learned Judge of this Court vide orders dated 09.09.2021. Assailing the orders passed by this Court, the accused/ A-7 and A-8 preferred Special Leave Petition (Crl.) No.3087 of 2022. The Hon'ble Supreme Court, having observed that the order impugned appears to have been passed without giving an opportunity of hearing to the petitioners therein, set aside the orders impugned and remitted the matter to this Court for fresh adjudication.
7. Heard Sri P. Veera Reddy, learned senior counsel, for Sri B.S.Reddy, learned counsel for the petitioner/ de facto complainant, Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the 1st respondent-State and Sri Nagamuthu S., learned senior counsel, for Sri Virupaksha Dattatreya Gouda, learned counsel for the respondents 8 &9/A-7 and A-8. The notice sent to the respondent No.6/A-5 was returned with an endorsement 'refused' and thus deemed served on him and none represented him in these proceedings.
Sri P.Veera Reddy, learned senior counsel for the petitioner/ de facto complainant would submit that the order impugned is improper and the Court below erroneously dismissed the protest petition ignoring the fact that there is prima facie material available on record regarding 5 involvement of A-5, A-7 and A-8 in the commission of the offence along with other co accused.
The learned senior counsel would further submit that the Court below failed to take into consideration the 161(3) CrPC statements of L.Ws.1 to 5, which clearly show the involvement and participation of the co-accused/A5, A7 and A8 in commission of the offence.
The learned senior counsel would further submit that the Court below failed to consider that the Investigating Officer failed to give any reasons for deletion of A-5, A-7 and A-8. It is further submitted that the sworn statement of L.W.1 to L.W.4 clearly makes out a prima facie case regarding involvement of A-5, A-7 and A-8 in commission of the offence, but the Court below failed to make note of the same and came to erroneous conclusion in dismissing the protest petition.
The learned senior counsel would further submit that the Court below instead of considering as to whether there was any prima facie material available on record regarding involvement of A-5, A-7 and A-8 in commission of crime travelled much beyond the scope of enquiry and power conferred upon it by the Criminal Procedure Code and tried to find out corroboration among the witnesses, whose sworn statements 6 were recorded, as if it was trial Court. Thus, the impugned order is perverse, unsustainable and is liable to be set aside.
The learned senior counsel would further submit that the Court below ignored the fundamental facet that the scope of enquiry under Section 202 CrPC is limited to finding out the truth or otherwise of the complaint in order to determine whether process should be issued or not and at this stage of enquiry what all the Court required to see is as to whether there was any prima facie evidence available on record and at this stage of enquiry and the Court should not go deep into the merits and demerits of the case which can well as done only after full dressed trial by the trial Court and thus the observations made by the Court below in the impugned order are perverse and without jurisdiction.
The learned senior counsel would further submit that the Court below while taking cognizance of an offence and issuing process to the accused is duty bound to apply its mind to the facts of the case, however the duty of the Court below at this stage cannot be permitted to stretch to the extent of finding out corroboration among the sworn statements of the witnesses and say that there are some discrepancies in the evidence and they are not tenable.
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The learned senior counsel would further submit that the Court below did commit a procedural irregularity in recording the sworn statements of the de facto complainant and three other witnesses. At this stage, the Court below has to peruse the material available on record in the form of 161(3) CrPC statement of the witnesses to find out the presence of prima facie case.
The learned senior counsel has drawn attention of this Court to 161(3) CrPC statements of L.Ws.1 to 5 and contended that they disclose a prima facie case against the accused/A5,A7 and A8 and he has further drawn attention of this Court to the sworn statements of L.Ws.1 to 4 recorded by the learned Magistrate and contended that L.Ws.1 to 4 have categorically deposed about the presence and participation of the accused/A5, A7 and A8 in commission of the offence.
The learned Senior counsel, in support of his contentions has relied on Rajesh and others vs. State of Haryana 1, Dharam Pal and others v. State of Haryana and another2, Sartaj Singh vs. 1 . (2019) 6 Supreme Court Cases 368 2 .2013 Cri. L.J. 3900 8 State of Haryana and another3, Vishnu Kumar Tiwari v. State of U.P4 On the above grounds, the learned senior counsel prayed to allow the Criminal Revision Case by setting aside the impugned order and direct the Court below to take cognizance against A-5, A-7 and A-8 and issue process to them to stand trial along with other co-accused.
8. Sri S. Nagamuthu, learned senior counsel for the respondents 8 and 9/A-7 and A-8, would submit that 161(3) CrPC statements of L.Ws.6 to 13 recorded by the Investigating Officer during the course of investigation clearly ousts the presence and participation of A-5, A-7 and A-8 in the alleged commission of crime and that too the presence of L.Ws.6 to 13 is not denied by L.W.1 to L.W.5.
The learned senior counsel would further submit that there are glaring inconsistencies in the sworn statements of L.Ws.1 to 4 recorded by the Court below and the Court below having found that there is no corroboration among L.Ws.1 to 4 rightly came to the conclusion that there is no prima facie material available against A-5, A-7 and A-8 regarding their involvement and passed the impugned orders. Hence, 3 . (2021) 5 Supreme Court Cases 337 4 .(2019) 3 SCC (Cri.) 269 9 there is nothing for this Court to interfere with the reasoned order so passed by the Court below.
The learned senior counsel would further submit that enquiry at the stage of Section 200 CrPC is legally vital to protect the affected party from a frivolous complaint and a vexatious prosecution and the Magistrate has to prima facie justify the filing of the complaint and that the Magistrate is bound to consider the question as to whether the allegations in the complaint or police report discloses commission of an offence and form an opinion and at this stage the Court has to take cognizance of an offence and not to deal with offenders and thus a wide discretion has been given to the Magistrate as to grant or refusal of process and it must be judicially exercised and a person ought not to be dragged into court merely because a complaint has been filed.
The learned senior counsel would further submit that summoning of an accused in a criminal case is a serious nature and criminal law cannot be set into motion as a matter of course. It is a judicial order and the Court below has to apply its mind before issuing process to the accused and it has to sift the evidence available on record to find out regarding availability of prima facie case. In that process, the Court below has found serious inconsistencies in the evidence of L.W.1 to 10 L.W.4 and that too they are not corroborating with each other. Thus, it cannot be termed as either exceeding jurisdiction or travelling beyond limits and scope of enquiry.
The learned senior counsel would further submit that the Court below has treated the protest petition as a complaint and thus it proceeded on to record the sworn statements of the de facto complainant and witnesses produced on his behalf as L.Ws.1 to 4 under Section 202 CrPC. Thus, there is neither procedural irregularity nor illegality.
The learned senior counsel would further submit that the Court below dismissed the protest petition and took cognizance against other co-accused (A-1 to A-4 and A-6) under Section 190 (1)(b) CrPC. The said order of taking cognizance was not challenged by the petitioner/ de facto complainant. He had chosen to file this Criminal Revision Case assailing the order dated 19.10.2018 passed in CFR No.912 of 2018 whereby the protest petition filed by him was dismissed. Cognizance in a case cannot be taken twice since cognizance had already been taken against other co-accused and that had become final, the only remedy available to the petitioner/ de facto complainant is to file a private 11 complaint and he cannot seek for issuance of process against A-5, A-7 and A-8 by filing this Criminal Revision Case.
The learned senior counsel would further submit that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment and since the de facto complainant sought to abuse the solemn process of Court by implicating A-5, A-7 and A-8, the Court below thwarted such an attempt at the very threshold and thus the Court below has acted within its powers conferred on it at this stage of enquiry and the same cannot be termed as either perverse or exceeding jurisdiction and scope of enquiry.
The learned senior counsel would further submit that for coming to the decision as to whether a process should be issued, the Court below can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. Hence, the Court below having found inherent improbabilities appearing in the evidence of the witnesses has dismissed the protest petition and the same does not deserve any interference of this Court.
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The learned senior counsel has drawn attention of this Court to the 161 (3) CrPC statements of L.Ws.6 to 13 placed on record and contended that L.Ws.6 to 13 have categorically stated that A5, A7 and A8 were neither present nor participated in commission of the offence.
In support of his contentions, the learned senior counsel has relied on Dharm Pal and Others v. State of Haryana and another5, Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others6, Sunil Bharti Mittal vs. Central Bureau of Investigation7, Vineet Kumar and others vs. State of Uttar Pradesh and another8, Pepsi Foods Limited and another v. Special Judicial Magistrate and others9 and Vasanti Dubey vs. State of Madhya Pradesh10.
On the above contentions, the learned senior counsel for the respondent Nos. 8 and 9 prayed to dismiss the Criminal Revision Case.
9. In reply, the learned senior counsel for the petitioner would submit that, for treating the protest petition as a complaint, the protest petition must fulfil the requirements of a complaint. Further, it 5 . 2013 Cri.L.J.3900 6 . (1976) 3 Supreme Court Cases 736 7 . (2015) 4 Supreme Court Cases 609 8 . (2017) 13 Supreme Court Cases 369 9 . (1998) 5 Supreme Court Cases 749 10 . (2012) 2 Supreme Court Cases 731 13 contained a prayer to include A-5, A-7 and A-8 to the case along with other co-accused/A-1 to A-4 and A-6. Thus, the Court below misunderstood the procedure contemplated under law and recorded the sworn statements of the witnesses, instead of perusing the material available on record. This shows that the Court below misconstrued the provision of law regarding taking cognizance of the offence.
10. Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for 1st respondent-State would submit that order impugned being interlocutory revision is not maintainable. He would further submit that the investigation done by police made it clear that A-5, A-7 and A-8 did not participate in commission of offence and hence they were deleted from array of the accused. Thus, there are no grounds to interfere with the order passed by the Court below. Hence, prayed to dismiss the Criminal Revision Case.
11. In reply to the contentions raised by the learned Special Assistant Public Prosecutor, the learned counsel for the petitioner has submitted that the order impugned is not an interlocutory order, since if it is reversed, it has the effect of terminating the proceedings itself and thus revision petition is maintainable. In support of his contention, he 14 relied on the decision in Mohit alias Sonu and another v. State of Uttar Pradesh and another11
12. Regarding maintainability of revision against the impugned order taking cognizance of an offence, in Mohit alias Sonu and another v. State of Uttar Pradesh and another., their Lordships of Hon'ble Supreme Court while referring to various pronouncements of the Apex Court, held at paras-25 and 27 as follows:
"25. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 CrPC cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 CrPC. Admittedly, in the instant case, before the trial court the complainant's application under Section 319 CrPC was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath case [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] , an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) CrPC.
27. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 CrPC and not by invoking inherent jurisdiction of the High Court under Section 482 CrPC. Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 CrPC. In the 11 . (2013) 7 Supreme Court Cases 789 15 event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 CrPC, the High Court before passing the order would have given notice and opportunity of hearing to the appellants."
13. It is also appropriate to extract the observations of their Lordships of Hon'ble Supreme Court in Girish Kumar Suneja v. Central Bureau of Investigation12.
"21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind--an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue."
14. From the above, it is evident that order taking cognizance is an intermediate order, since if it is reversed, it has the effect of terminating the proceedings against the accused. Thus, revision is maintainable. Hence, the contentions raised in this regard, are not tenable.
12 .2017(14) Supreme Court Cases 809 16
15. In Birla Corporation Ltd. Vs Adventz Investments and Holdings, the Hon'ble Supreme Court held at para-38 as follows:
"38. Extensive reference to the case law would clearly show that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused. In the light of the above principles, let us consider the present case whether the allegations in the complaint and the statement of the complainant and other materials before the Magistrate were sufficient enough to constitute prima-facie case to justify the Magistrate's satisfaction that there were sufficient grounds for proceeding against the respondents-accused and whether there was application of mind by the learned Magistrate in taking cognizance of the offences and issuing process to the respondents."
16. The observations made by the Hon'ble Supreme Court would go to show that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused.
17. In Pepsi Foods Ltd. And another v. Special Judicial Magistrate and others the Hon'ble Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue In para-28 of the Judgment the Hon'ble Supreme Court held as follows:
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"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505."
18. The observations referred to supra would show that the Court has to carefully scrutinise the evidence brought on record and may even put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine as to whether any offence is prima facie committed by the accused.
19. In Dharam Pal and others v. State of Haryana and another, the Full Bench of Hon'ble Supreme Court held as follows: 18
"22. In support of his submissions, Mr Dave referred to the decision of this Court in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 :
1997 SCC (Cri) 415] , wherein the question of the court's powers at the stage of taking cognizance of an offence under Sections 190, 200 and 202 of the Code fell for consideration and it was held that at the stage of taking cognizance of an offence, the court should consider only the averments made in the complaint as the court is not required to sift or appreciate any evidence at that stage.
23. Mr Dave also referred to the decision of this Court in India Carat (P) Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989 SCC (Cri) 306] , wherein this Court has held that despite a police report that no case had been made out against an accused, the Magistrate could take cognizance of the offence under Section 190(1)(b), taking into account the statement of witnesses made under police investigation and issue process. Reference was also made to the decision of this Court in Abhinandan Jha v. Dinesh Mishra [AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] , in which the same view had been expressed. In the said case, it was held that the Magistrate had no power to direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a report of the action taken under Section 169 of the 1898 Code that there was no case made out for sending of the accused for trial.
24. Mr Dave also referred to the decision of this Court in Raj Kishore Prasad v. State of Bihar [(1996) 4 SCC 495 : 1996 SCC (Cri) 772] , in which it was also held that while committing a case under Section 209 of the Code, the Magistrate had no jurisdiction to associate any other person as accused in exercise of powers under Section 319 of the Code or under any other provision. It was further observed that a proceeding under Section 209 of the Code before a Magistrate is not an inquiry and material before him is not evidence. It is only upon committal can the Court of Session exercise jurisdiction under Section 319 of the Code and add a new accused, on the basis of evidence recorded by it."
20. The above referred observations make it clear that at the stage of taking cognizance of an offence, the court should consider only the averments made in the complaint as the court is not required to sift or appreciate any evidence at that stage and despite a police report 19 that no case had been made out against an accused, the Magistrate could take cognizance of the offence under Section 190(1)(b), taking into account the statement of witnesses made under police investigation and issue process
20. Now it has to be seen whether the material available on record makes out any prima facie case and whether Court below has applied its mind to the facts of the case and law governing the issue and whether the Court below is justified in coming to the conclusion that no prima facie grounds are found regarding participation and involvement of A-5, A-7 and A-8 for proceedings against them.
21. In the report dated 25.05.2017 given by the petitioner/ de facto complainant to the police, specific allegations are made against A- 5, A-7 and A-8 regarding their participation and involvement in commission of the crime. In 161(3) CrPC statements of L.W.1 to L.W.5 also specific overt acts are made against A-5, A-7 and A-8. However, in 161(3) CrPC statements, L.W.7 to L.W.13, who are said to be the eyewitnesses to the alleged incident, stated that A-5, A7 and A8 were not present at the time of the incident, but due to political rivalry and out of jealous as A-7 and A-8 were pursuing higher studies, they were 20 falsely implicated in this case. Thus, it is evident that two different versions in 161(3) CrPC statements are available on record. Though all the witnesses (L.W.1 to L.W.13) deposed about the occurrence of the incident, there is contradictory versions among them regarding the participation or otherwise of A-5, A-7 and A-8. L.Ws.1 to 5 stated the presence and participation of A-5, A-7 and A-8 in the commission of offence whereas L.Ws.7 to 13 stated that A-5, A-7 and A-8 were not present at the spot, but they have been falsely implicated in this case.
22. Regarding duties of a Magistrate while taking cognizance and the scope and extent of enquiry needed at the stage of taking cognizance, it is relevant to extract the observations of the Hon'ble Supreme Court in Sunil Bharti Mittal vs. Central Bureau of Investigation13 at paras-48, 49, 52 and 54,relied on by the learned senior counsel for the respondents 8 and 9.
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, 13 . (2015) 4 Supreme Court Cases 609 21 the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
54. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19-3-2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLPs (Crl.) Nos. 3326-27 of 2013 filed by Telecom Watchdog are dismissed."
23. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. At the stage of taking cognizance, the 22 only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
24. In Sartaj Singh v. State of Haryana relied on by the learned counsel for the petitioner, their Lordships of Hon'ble Supreme Court held as follows:
"13. Heard the learned counsel for the respective parties at length. What is under challenge in the present appeals is the impugned judgment and order [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] passed by the High Court allowing the revision applications filed by the private respondents herein and quashing and setting aside the order passed by the learned trial court summoning the accused in exercise of powers under Section 319 CrPC and to face the trial.
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16. Now, so far as the impugned judgment and order [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] passed by the High Court is concerned, it appears that while quashing and setting aside the order passed by the learned trial court, the High Court has considered/observed as under : (Manjeet Singh case [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] , SCC OnLine P&H paras 29-30) "29. No evidence except the statement of Sartaj Singh, which has already been investigated into by the DSPs concerned was relied upon by 23 the trial court to summon, which was not sufficient for exercising power under Section 319 CrPC.
30. As per statement of Sartaj Singh, Palwinder Singh and Satkar Singh gave him lathi-blows on the head. Manjeet Singh, Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukhdev Singh were holding gandasi. Manjeet Singh, Amarjeet Singh and Rajwant Singh gave him gandasi- blows on the head and face. All the injuries are stated to fall in the offence under Sections 323, 324, 326, 341 read with Section 149 IPC. In case, so many people as mentioned above were giving gandasi and lathis blows on the head, Sartaj Singh was bound to have suffered more injuries, which would not have left him alive and probably he would have been killed on the spot. He seems to have escaped with only such injuries as have invited offence only under Sections 323, 324, 326, 341 read with Section 149 IPC. Therefore, the trial court erred in exercising his jurisdiction summoning the other accused where exaggeration and implication is evident on both sides."
17. The aforesaid reasons assigned by the High Court are unsustainable in law and on facts. At this stage, the High Court was not required to appreciate the deposition of the injured eyewitness and what was required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eyewitness in his examination-in-chief is exaggeration or not. The aforesaid aspects are required to be considered during the trial and while appreciating the entire evidence on record.
18. Therefore, the High Court has materially erred in quashing and setting aside the order passed by the learned trial court summoning the accused to face the trial in exercise of powers under Section 319 CrPC, on the reasoning mentioned hereinabove. Even the observations made by the High Court referred to hereinabove are on probability. Therefore, the impugned judgment and order passed by the High Court is not sustainable in law and on facts and is beyond the scope and ambit of Section 319 CrPC."
25. No doubt, the Court below has to consider the material available on record judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie 24 case or not. In the case on hand, as stated supra, two different versions regarding involvement of A-5, A-7 and A-8 are available. At the stage of taking cognizance, it is not permissible to the Magistrate to accept or deny any of the versions and that can only be done after the witnesses are subjected to cross-examination and after full dressed trial. It is a well settled principle of law that trial is a voyage of discovery in which truth is the quest.
26. On receipt of the protest petition, the Court below has examined the de facto complainant and three other witnesses produced by him as L.W.1 to L.W.4. According to the learned senior counsel for the petitioner, such a course is not open to the Court below since the protest petition does not contain all the requirements of a private complaint and thus the Court below cannot resort to recording sworn statements of the witnesses and it must confine itself to perusal of the material available on record and the contents of the protest petition. Whereas, according to the learned senior counsel for the respondent Nos. 8 and 9, the Magistrate is empowered to treat the protest petition as a private complaint and thereafter he can follow the procedure contemplated under Section 202 CrPC and the Court below followed the 25 procedure contemplated under Sections 200 and 202 CrPC and thus there is no procedural irregularity.
27. As to what would be the appropriate procedure to be followed by the Court below when confronted with a final report, in Vishnu Kumar Tiwari v. State of U.P, their Lordships of Hon'ble Supreme Court held at paras- 18 to 20, 38 and 42 as follows:
"18. Thus, when he proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the basis of the police report and not on the complaint. And, therefore, the question of examining the complainant or his witnesses under Section 200 of the Code would not arise. This was the view clearly enunciated.
19. In Mahesh Chand v. B. Janardhan Reddy [Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734 : 2003 SCC (Cri) 425] , the appellant complainant had lodged report alleging commission of offences by the respondent. Subsequently, being dissatisfied with the investigation, he filed a criminal complaint in the court of the Magistrate. In the meantime, the investigating officer filed a final report finding that the controversy was of a civil nature. The appellant filed a protest petition. The final report was accepted by the Magistrate. The complaint case filed by the appellant was also closed. It became final. The appellant filed a third complaint, as it were, under Section 200 of the Code. On summons being issued, it was successfully questioned before the High Court. We may notice the following discussion by this Court profitably: (SCC pp. 737 & 740-41, paras 12 & 16-19) "12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.26
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16. In Munilal Thakur case [Munilal Thakur v. Nawal Kishore Thakur, 1984 SCC OnLine Pat 339 : 1985 Cri LJ 437 : 1984 PLJR 774] the Division Bench of the Patna High Court was concerned with the question as to whether a Magistrate even after accepting final report filed by the police, can take cognizance of offence upon a complaint or the protest petition on same or similar allegations of fact; to which the answer was rendered in the affirmative.
17. The question which has arisen for consideration herein neither arose therein nor was canvassed.
18. In Jayashankar Mund case [Food Corpn. of India v. Jayashankar Mund, 1989 SCC OnLine Ori 89 : (1989) 67 Cut LT 426 : 1989 Cri LJ 1578] the Orissa High Court again did not have any occasion to consider the question raised herein. The Court held: (SCC OnLine Ori para 14) '14. ... Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under Section 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police.'
19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held inPramatha Nath Talukdar case [Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962) 1 Cri LJ 770] second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a 27 misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
(emphasis supplied)
20. In Gangadhar Janardan Mhatre v. State of Maharashtra [Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768 : 2005 SCC (Cri) 404] , this Court reiterated that the Magistrate can, faced with a final report, independently apply his mind to the facts emerging from investigation and take cognizance under Section 190(1)(b), and in this regard, is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance under Section 190(1)(b). It was, however, open to the Magistrate to do so.
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38. In H.S. Bains [H.S. Bains v. State (UT of Chandigarh), (1980) 4 SCC 631 : 1981 SCC (Cri) 93] , there was a private complaint within the meaning of Section 190(1)(a) of the Code. The matter was referred to the police under Section 156(3). The investigating officer filed a final report. Therein, the court took the view that apart from the power of the Magistrate to take cognizance notwithstanding the final report, under Section 190(1)(b), he could also fall back upon the private complaint which was initially lodged but after examining the complainant and his witnesses, as contemplated under Sections 200 and 202 of the Code. In regard to taking cognizance under Section 190(1)(b) of the Code of a final report, undoubtedly, it is not necessary to examine the complainant or his witnesses though he may do so.
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42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a 28 different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court."
28. In para-44 of the above referred decision their Lordships have held thus:
"44.We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) "9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a 29 normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC."
29. The above observations would make it clear that when the Magistrate disagrees with the conclusions arrived at in the police report and proceeds to take action, he would be taking cognizance on the basis of the police report and not on the complaint and therefore, question of examination of the witnesses does not arise. When faced with a final report, the Magistrate can independently apply his mind to the facts emerging from investigation and take cognisance under section 190(1)(b) CrPC and in this regard, there is no need to follow the procedure under sections 200 and 202. It is however, open to the Magistrate to do so.
30. In the case on hand, the de facto complainant has presented a report to the police and the same was registered as a crime. Thus, by filing the protest petition, the de facto complainant is inviting the Magistrate to take cognizance under Section 190(1)(b) CrPC. Thus, this Court does not find any merit in the contentions advanced on behalf of the learned counsel for the respondent Nos. 8 and 9 that the petitioner/de facto complainant can only pray the Court below to take cognizance under Section 190(1)(a) CrPC.
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31. In the decision referred to supra, in para-46, their Lordships observed as follows:
"46. If a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. ........."
32. Thus, it is evident that if a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with 202 of the Code.
33. A perusal of the protest petition filed before Court below shows that it does not contain all the requirements of a complaint and that too the said petition contains a prayer to treat it as protest petition. Hence, the Court below is not justified in treating the protest petition as a private complaint and also in proceeding to record the sworn statements of L.W.1 to L.W.4.
34. However, a perusal of the sworn statements of the witnesses- L.W.1 to L.W.4 show that specific allegations are made against A-5, A-7 and A-8 regarding their presence and participation in the commission of the offence.
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35. It is relevant here to note that scope of enquiry under Section 202 of Cr.P.C. is limited. The Hon'ble Apex Court in Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar14 held as follows:
50. "......The scope and extent of Sections 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker [(1961) 1 SCR 1, 9, 10] . The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously......"
36. Thus, it is evident that the scope and extent of enquiry under Section 202 CrPC is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not.
However, the Court below unmindful of the above limitation, though specific allegations are made against A5, A7 and A8 in the sworn statements of L.W.1 to L.W.4, has come to the conclusion that there is no corroboration among the evidence of L.W.1 to L.W.4. Thus, the conclusion so reached by the Court below is unsustainable. 14
1962 Supp (2) SCR 297 32
37. To sum up the above observations, since the report given by the de facto complainant contains specific allegations against A-5, A-7 and A-8 and further the 161(3) CrPC statements of L.W.1 to L.W.5 also contain specific overt acts against A-5, A-7 and A-8 and so also in the sworn statements of L.W.1 to L.W.4 they stated about the participation and involvement of A-5, A-7 and A-8; simply because L.W.7 to L.W.13 gave different version stating that A-5, A-7 and A-8 were not present, this is not the appropriate stage to decide as to whose evidence is true. The truth or otherwise of the allegations in the complaint and as to which version of L.Ws.1 to 5 or L.Ws.7 to 13 is true will be judged only after full dressed trial.
38. In view of the above, the impugned order of the Court below is not sustainable and the same is liable to be set aside.
39. Accordingly, the Criminal Revision Case is allowed by setting aside the impugned order dated 19.10.2018 passed in CFR No.912 of 2018 by the learned Judicial Magistrate of First Class, Koilkuntla. The learned Magistrate is directed to take cognizance against A-5, A-7 and A-8 also.
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As a sequel, pending miscellaneous applications, shall stand closed. Interim Orders, if any, shall stand vacated.
_______________________________ JUSTICE RAVI CHEEMALAPATI Date : 28.10.2022 RR 34 HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CRIMINAL REVISION CASE No.3314 of 2018 Date : 28.10.2022 RR