Andhra HC (Pre-Telangana)
Kolli Buchi Kotaiah, S/O.Venkata ... vs The State Of Andhra Pradesh, Through The ... on 8 July, 2014
Author: T.Sunil Chowdary
Bench: T.Sunil Chowdary
HON'BLE SRI JUSTICE T.SUNIL CHOWDARY CRIMINAL PETITION No.7806 of 2011 08-7-2014 Kolli Buchi Kotaiah, S/o.Venkata Padmanabham Petitioner/Accused No.1 The State of Andhra Pradesh, through the SHO, P.S. Chikkadpally And others Respondents Counsel for the petitioner: Sri P.Sri Raghu Ram Counsel for the respondent No.1: The Addl. Public Prosecutor Counsel for respondent No.2: Sri T.Rajendra Prasad Counsel for respondent Nos.3 and 4: Sri Ch.Ravindra Babu <GIST: >HEAD NOTE: ? CASES REFERRED: 1)(1996) 6 SCC 435 2)AIR 1961 AP 448 3)AIR 1965 SC 1185 4)(2013) 5 SCC 148 5)AIR 1960 SC 866 6)AIR 1982 SC 604 THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY CRIMINAL PETITION No.7806 of 2011 ORDER:
This petition is filed under Section 482 Cr.P.C. to quash the proceedings against the petitioner/A.1 in Crime No.30 of 2011 of Chikkadpally P.S., Hyderabad.
The facts leading to filing of the present petition, briefly, are as follows: The petitioner, Kolli Satyanarayana, Kolli Pandu Ranga Rao and Kolli Rama Devi have started partnership firm in the name and style of M/s.Sri Krishnaveni Poultry Needs, in the year 1986. One Kolli Venkata Padmanabham joined in the firm as a partner on 08.09.1988. The said firm was registered with Registrar of Firms, vide Registration No.1527/1989. Kolli Satyanarayana retired from the partnership firm in the year 1992 and one Gangaram joined as one of the partners of the firm.
The petitioner submitted Form-V affidavits of Kolli Venkata Padmanabham, Kolli Pandu Ranga Rao (third respondent) and Kolli Rama Devi (fourth respondent) before the Registrar of Firms, Hyderabad (second respondent). Basing on the Form-V affidavits, the second respondent had made necessary entries in the relevant registers. On coming to know about the same, respondent Nos.3 and 4 herein filed appeal before the second respondent, who in turn rectified the entries. The petitioner herein filed W.P.No.266 of 2011 on the file of this Court challenging the action of the second respondent and the said writ petition was dismissed on 20.4.2012.
On 24.01.2011, the second respondent submitted a written complaint to the Station House Officer (SHO), Chikkadpally P.S., who in turn registered a case in Crime No.30 of 2011 under Sections 420, 468 and 471 IPC and Section 70 of Indian Partnership Act against the petitioner.
Heard Sri P.Sri Raghu Ram, learned counsel for the petitioner, Sri T. Rajendra Prasad, learned counsel for the respondent No.2, Sri Ch.Ravindra Babu, learned counsel for the respondent Nos.3 and 4 and learned Additional Public Prosecutor for the first respondent-State.
The contention of learned counsel for the petitioner is two fold: (1) the SHO, Chikkadpally P.S. ought not to have registered Crime No.30 of 2011 under Section 70 of Indian Partnership Act, which is a non-cognizable offence, without obtaining prior permission from the concerned Magistrate; and (2) Two F.I.Rs cannot be registered for the same offences against the same person.
Section 2(l) of Cr.P.C. defines non-cognizable offence. As per Schedule-II of Cr.P.C. if the punishment prescribed for an offence (other than I.P.C.) is less than 3 years or with fine only, it is a non-cognizable offence. Section 155(2) of Cr.P.C., mandates that no police officer is entitled to investigate a non-cognizable offence without obtaining permission of the concerned Magistrate. The punishment prescribed under Section 70 of Indian Partnership Act is three months, or fine, or with both. Undoubtedly the offence under Section 70 of Indian Partnership Act is will come within the definition of non-cognizable offence. It is an admitted fact that the SHO, Chikkadpally P.S. has not obtained any order from the concerned Magistrate to conduct investigation in this case. As per Schedule-I of Cr.P.C., Sections 420, 468 and 471 IPC are cognizable offences. In view of Section 156 Cr.P.C., Police officer need not obtain any permission from the concerned Magistrate to conduct investigation of a cognizable offence. Crime No.30 of 2011 was registered for cognizable and non- cognizable offences. For better appreciation of rival contentions, it is not out of place to extract hereunder Section 155(4) Cr.P.C.
155. Information as to non-cognizable cases and investigation of such cases.-
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
A perusal of the above provision clearly manifests that if a crime consists of both cognizable and non-cognizable offences, non-cognizable offence can be treated as cognizable offence, because of the legal fiction enshrined therein. My view is fortified by the decision in State of Orissa v Sharat Chandra Sahu wherein the Supreme Court held as under:
12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in Sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-
cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in Sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.
Learned counsel for the respondent Nos.3 and 4submitted that if the crime comprised of cognizable and non- cognizable offences, the Police officer can investigate the matter without obtaining prior permission from the concerned Magistrate. To substantiate his contention, he relied upon the following decisions in Vadlamudi Kutumba Rao v State of A.P. , wherein it was held as follows:
In the present case, it is obvious that the case which the Police investigated was a cognizable case, because it related to cognizable offences under Sections 409 and 120- B IPC and in spite of the fact that it also related to non- cognizable offences under Sections 467, 463, 471 and 193 IPC. So, the investigation of the case did not require any order from a Magistrate, as contemplated under Section 155(2) Cr.P.C. In effect, the charge-sheet in the case was instituted on a police report, as contemplated in Section 207-A Cr.P.C. and with the consequence that the procedure specified in Section 207-A Cr.P.C. was appropriate procedure.
In Pravin Chandra Mody v State of A.P. , the Supreme Court held as follows:
Section 156(2) provides that where a police officer enquires into an offence under Section 156(1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of fact. Even if the offence under the Essential Commodities Act may not be cognizable - though is not alleged by the appellant that it is not the-cognizable - the police officer would be competent to include it in the charge-sheet under Section 173 with respect to a cognizable offence. In Ram Krishna Dalmia v. State, AIR 1958 Punj 172 , Falshaw J. (as he then was) observed that the provisions of Section 155(1) of the Criminal Procedure Code, must be regarded as applicable to those cases where the information given to the police is solely about a non-cognizable offence. Where the information discloses a cognizable as well as a non- cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.
As per the principle enunciate in the cases cited supra, if cognizable and non-cognizable offences form integral part of same crime, the Police officer is entitled to investigate into the matter without obtaining prior permission from the concerned Magistrate. The facts of the case on hand are almost identical to the facts of the cases cited supra.
Having regard to the facts and circumstances of the case and also the principle enunciated in the cases cited supra, I am unable to accede to the contention of learned counsel for the petitioner that the SHO, Chikkadpally P.S. committed illegality while registering the crime under Section 70 of Indian Partnership Act.
The next contention of the learned counsel for the petitioner is that two F.I.Rs cannot be registered against the same person on the same set of facts in respect of same offence. The learned counsel for respondent Nos.3 and 4 submitted that the set of facts are different though two Sections of law are common in both the crimes. To substantiate the contention, the learned counsel for the petitioner has drawn my attention to the ratio laid down in Surendra Kaushik v State of Uttar Pradesh , wherein the Supreme Court held as under:
In Babubhai v State of Gujarat, (2010) 12 SCC 254, this Court, after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible.
It is an admitted fact that at the instance of respondent No.3 herein, the SHO, Patamata P.S., Vijayawada registered Crime No.530 of 2010 under Sections 406, 408, 420, 463, 468, 323 and 506 IPC against the petitioner and his son (A.2). Crime No.30 of 2011 was registered by the SHO, Chikkadpally P.S., Hyderabad against the petitioner herein under Sections 420, 468, 471 IPC and Section 70 of Indian Partnership Act at the instance of second respondent. Sections 420 and 468 IPC are common in both the crimes. Crime No.30 of 2011 was registered on the ground that the petitioner submitted Form- V affidavits as if they contain the signatures of Kolli Venkata Padmanabham, Kolli Pandu Ranga Rao and Kolli Rama Devi. As per the allegations made in the complaint, the petitioner herein forged the signatures of the above three persons and submitted the affidavits along with Form-V before the Registrar of Firms, Hyderabad as if they voluntarily retired from the partnership firm in the year 2009. The respondent No.3 lodged a complaint to the SHO, Patamata P.S. on coming to know about forging of their signatures by the petitioner herein. Though two crimes are registered against the petitioner, the set of facts set out in both the crimes are different. A crime can be registered if an act or omission on the part of a person constitutes an offence. Crime No.530 of 2010 was registered for alleged misappropriation of partnership funds, cheating and breach of trust on the part of the petitioner whereas Crime No.30 of 2011 was registered for submitting of forged documents by the petitioner before the Government department by creating an impression as if they are genuine documents. Basing on the material available on record, prima facie it is not possible to arrive at a conclusion that both the crimes were registered basing on the same set of facts.
Having regard to the facts and circumstances of the case and also the principle enunciated in the case cited supra, the submission made by the learned counsel for the petitioner is not tenable either on facts or on law.
Learned counsel for the petitioner submitted that the allegations made in the complaint do not constitute any offence and therefore, it is a fit case to quash the proceedings. Learned counsel for the respondent Nos.3 and 4 and learned Additional Public Prosecutor submitted that in view of seriousness of the allegations made against the petitioner, it is not a fit case to quash the proceedings.
It is a settled principle of law that High Court can quash the criminal proceedings by exercising inherent jurisdiction under Section 482 Cr.P.C., in the following circumstances: (1) if the allegations made in the complaint/F.I.R. do not constitute any offence; (2) if the allegations made in the complaint ex facie taken to be true and correct, there is no possibility of conviction of the petitioner/accused; (3) if the registration of the case against the petitioner is prohibited by any law for the time being in force; (4) if the registration of the case and continuation of criminal proceedings would amount to abuse of process of law; or (5) to secure the ends of justice.
It is not in dispute that the petitioner herein and respondent Nos.3 and 4 have started partnership firm. Disputes arose between the partners for one reason or the other. As per the allegations made in the complaint, the petitioner herein forged the signatures of respondent Nos.3 and 4 and one Kolli Venkata Padmanabham in the affidavits and submitted the same to the Registrar of Firms as if they voluntarily retired from the partnership firm. As per the averments in the complaint, Padmanabham died on 05.6.1994 whereas the affidavit of said Padmanabham was filed before the Registrar of Firms in the year 2009. The allegations made in the complaint prima facie disclose the offences alleged to have been committed by the petitioner punishable under Sections 420, 468, 471 IPC and Section 70 of Indian Partnership Act. The Court is not justified in embarking upon the enquiry to ascertain the truthfulness or otherwise of the allegations made in the complaint at the initial stage of investigation. The court shall not stifle the investigation.
Regarding the quashing of F.I.R. by a High Court, the Apex Court in R.P.Kapoor v State of Punjab , held as hereunder:
"Cases may also arise where the allegations in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged. In such cases, no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In this case it would be legitimate to the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person."
In State of Haryana v Bhajanlal the Apex Court after having surveyed the entire case law on the point has laid down certain indicia with reference to which, a High Court may in exercise of powers under Article 226 of the Constitution of India or under Section 482 Cr.P.C may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Having regard to the facts and circumstances of the case and also the principles enunciated in the cases 5th and 6th cited supra, I am of the considered view that it is not a fit case to quash the proceedings against the petitioner in Crime No.30 of 2011 of Chikkadpally P.S. Accordingly, this criminal petition is dismissed. As a sequel, the miscellaneous petitions, pending if any, shall stand closed.
_________________________ T.SUNIL CHOWDARY, J Date: July 09, 2014.