Andhra Pradesh High Court - Amravati
Vodagandla Sudhakar Reddy vs The State Of A.P., Another on 9 December, 2019
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ CRIMINAL PETITION No.3216 of 2014
% 9th December, 2019
# Vodagandla Sudhakar Reddy
... Petitioner
AND
$ The State of Andhra Pradesh and another
... Respondents.
! Counsel for the Petitioner : Sri Challa Siva Sankar
^ Counsel for the respondents : Learned Public Prosecutor for
the State.
< Gist:
> Head Note:
? Cases referred:
1. (2019) 8 SCC 27
2. (1980) 4 SCC 631
3. 1992 Supp(1) SCC 335
2
HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION No.3216 of 2014
ORDER:
This Criminal Petition is filed by the petitioner-Accused No.5 under Section 482 of Criminal Procedure Code seeking to quash all further proceedings in PRC No.2 of 2104, which is taken on cognizance by an order dated 07.01.2014, by the learned Judicial First Class Magistrate, Allagadda, Kurnool District, on the private complaint / protest petition filed by the 2nd respondent for the offences under Sections 147, 148, 324, 307, 427 read with 149 of IPC and Section 3 (i) (xi) of SC ST (POA) Act, 1989.
This Court has heard Sri Challa Siva Sankar, learned counsel for the petitioner. Learned Public Prosecutor appearing for the State. Despite service there was no representation for the 2nd respondent. Hence, the matter was heard finally.
Learned counsel for the petitioner argues that initially FIR No.83 of 2010 was registered against five accused including the petitioner. Accused Nos.1 and 2 were murdered during the course of investigation. Thereafter, the case against them abated. Accused No.3 to 5 were the only accused, against whom the case is being continued. He points out that petitioner-Accused No.5 submitted documents to prove that he was not at the scene of offence on that day. 3 He argues that the police have verified the documents submitted by the employer of the petitioner-Accused No.5 and came to a conclusion that he was not present at the scene of offence on 27.07.2010. The police have deleted the name of the present petitioner by following the procedure.
Learned counsel for the petitioner points out that thereafter a protest petition was filed and once again cognizance was taken of the offence. Learned counsel for the petitioner points out that the Magistrate committed a serious error in taking the cognizance of the offence. He also argues that the offence under the SC ST (POA) Act is not made out as the offence did not take place in a public place. Lastly, he contends that as the 2nd respondent-de facto complainant belongs to the B.C. community and is not a member of the S.C. or S.T., the prosecution under the SC ST (POA) Act is ruled out. Learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of India reported in Vishnu Kumar Tiwari v State of Uttar Pradesh through Secretary Home, Civil Secretariat Lucknow and Another1 and argues that the Magistrate committed an error in taking the cognizance of the case in the manner that he did.
Learned Public Prosecutor on the other hand points out that the available material inducing the statement of L.W.1- Eddula Manikyamma shows that the petitioner was present on 27.07.2010 at the scene of offence. He also points out 1 (2019) 8 SCC 27 4 that the plea of alibi is a matter to be established during the course of the trial. Learned Public Prosecutor also points out that the status of the complainant on the basis of documents filed cannot be decided in the course of the proceedings under Section 482 of Cr.P.C. Learned Public Prosecutor points out that these are all matters, which need to be decided during the course of the trial and quashing of the proceedings is not called for. He points out that the material that is filed is not of such high quality which would immediately entitled the petitioner to seek quashing of the proceedings.
This Court after hearing both the learned counsel and considering the case law notices that even in the judgment cited by the learned counsel for the petitioner where well known case reported in H.S.Bains, Director, Small Saving- cum-Deputy Secretary Finance, Punjab Chandigarh v State (Union Territory of Chandigarh)2 was considered. In paragraph 16 of the present judgment this following passage from H.S.Bains was extracted -
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1) may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action: (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original 2 (1980) 4 SCC 631 5 complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 if he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he things fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
This clearly shows that the Magistrate has power and authority to disregard the police report of closing the case and issue summons to the accused. The power of the Magistrate to disregard the conclusions drawn by the police is squarely and clearly laid down in this case and as rightly pointed out by the learned Public Prosecutor this case has not been overruled and continues to hold the field even this date. The same is also visible from a plain language of interpretation of the relevant sections.
The other two points which are urged vehemently by the leaned counsel for the petitioner are the matters of the alibi or the presence of the accused in his office on that day and the attendance register. This Court is of the opinion that this crucial part of the learned counsel's argument cannot be considered at this stage, particularly in proceedings under Section 482 of Cr.P.C. are being heard. The plea of alibi is the matter that is required to be established during the course of the trial by leading cogent and reliable evidence. As has been held by the Hon'ble Supreme Court of India on more than one occasion the mere marking or filing of the document is not proof of the contents of the documents, when the truth or the veracity of the contents is an issue. The same should 6 be proved as required under law. Whether the petitioner was present at the scene of offence or he was actually discharging his duties in his offence on that day are the disputed questions of fact. This issue cannot be considered in an application under Section 482 of Cr.P.C. The statement of LW1, which is filed along with the material papers shows that the petitioner is specifically named as a person who got down from the vehicle with iron rod in his hands and then proceeded to commit an offence. Even in the protest petition that is filed it is very clearly urged that the present petitioner along with others came out of the vehicle. There is also a specific averment that the Sub Divisional Police Officer without conducting a proper investigation and examination of the witnesses referred the case as false.
Apart from all of this even with regard to alleged marriage certificates, which are filed to prove that the de facto complainant does not belong to SC ST community etc., this Court is also opinion that on the basis of the photostat copies that are filed, particularly from non-statutory sources, this Court cannot come to an absolute conclusion that the material is enough to hold that the complainant is not a member of the SC / ST community. As mentioned earlier this is also a matter of evidence.
This court is of the pinion that the case that is urged by the petitioner does not fit within the exceptions called out by 7 the Hon'ble Supreme Court of India in State of Haryana Vs Ch.Bhajan Lal and Others3. As has been held that by the Hon'ble Supreme Court of India repeatedly that the power under Section 482 of Cr.P.C. should be exercised with care and caution. In the opinion of this Court, the material that is filed does not lead to an irresistible conclusion that the petitioner was not present on the day of offence or that the de facto complainant does not belong to SC/ST community. In the opinion of this Court, these are all materials which need to be established during the course of the trial. Hence this Court holds that there are no merits in the application.
Accordingly, this Criminal Petition is dismissed. Miscellaneous Petitions, if any, pending in this Criminal Petition, shall also stand dismissed.
__________________________ D.V.S.S. SOMAYAJULU, J Date:09.12.2019.
Note: LR Copy to be Marked.
B/o Ssv 3 1992 Supp(1) SCC 335