Andhra Pradesh High Court - Amravati
Kaluva Kumar vs State Of Ap on 28 August, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.4230 of 2019
ORDER:
1. In this Petition filed under Section 482 Cr.P.C., the petitioners/A1 to A19 supplicate to quash the proceedings against them in Crime No.82 of 2019 of Nandalur Police Station, YSR Kadapa district.
2. The de-facto complainant filed a private complaint under Section 200 Cr.P.C. before the learned Judicial First Class Magistrate, Nandalur and the same is forwarded to the Nandalur Police under Section 156(3) Cr.P.C., which was registered as Crime No.82 of 2019 for the offences under Sections 120-B, 148, 149, 307, 448 & 506 r/w 34 IPC and investigated into. The brief facts of the complaint are that the de-facto complainant is living by doing agriculture and contract works and the M.L.A. of Rajampet viz., Sri Meda Venkata Mallikarjuna Reddy is his near relation. The complainant canvassed for Y.S.R. Congress Party. The petitioners/A1 to A19, who belong to opposite Telugu Desam Party, bore grudge against him and tried to injure him twice. While so, five days prior to the Assembly elections, all the accused conspired together to kill the complainant and the complainant came to know about their conspiracy through Orusu Srinivasulu and Dhunthala Yanadhi Reddy, he was scared and started taking precautions. While so, on 11.04.2019, after completion of polling in Yerracheruvupalle Village, while he was returning to his village, in the evening at about 06:15 p.m. all the accused armed with UDPR, J Crl.P.No.4230 of 2019 2 sticks, iron rods, knives, axes etc., attacked the complainant. Out of fear he ran towards his village and reached his home. A1 hurled a knife but the complainant could escape unhurt. In the meanwhile, the followers of the complainant reached there and stopped the accused. However, the accused came to the house of complainant and damaged the household articles and went away.
3. Denying the F.I.R. allegations as false and motivated to implicate the accused due to political rivalry, learned counsel for the petitioners sought for quashing the F.I.R. mainly on two technical grounds; firstly, he would argue that the learned Magistrate has forwarded the complaint to the Police mechanically without applying judicial mind and recording the reasons. Learned counsel would strenuously argue that the learned Magistrate is required to apply his mind to the facts of the complaint and record the reasons which prompted him to forward the complaint to the Police. The mechanical forwarding of the complaint to the Police for registration of the F.I.R, learned counsel argued, would deprive the accused an opportunity to effectively challenge the order in higher Forum for want of reasons. He relied on a decision of the Apex Court in Anil Kumar v. M.K. Aiyappa1, and also the decisions of this Court in S. Purnachandra Rao v. State of Andhra Pradesh2, Anne Srinivasa Rao v. State of Andhra Pradesh3 to contend that the Magistrate has to record reasons 1 2013 (10) SCC 705 2 2014 LawSuit (Hyderabad) 87 3 2017 LawSuit (Hyderabad) 578 UDPR, J Crl.P.No.4230 of 2019 3 while forwarding complaint to the Police under Section 156(3) Cr.P.C.
(a) Nextly, he argued that the complainant is required to file a sworn affidavit in support of the complaint allegations as is observed by the Apex Court in Priyanka Srivastava v. State of U.P.4. However, in the instant case, the complainant did not file his sworn affidavit and therefore, the learned Magistrate ought not to have forwarded his complaint to the Police. He thus prayed to quash the proceedings.
4. Per contra, learned Additional Public Prosecutor would argue that while forwarding a complaint under Section 156(3) Cr.P.C. at the pre-cognizance stage, a Magistrate need not give any elaborate reasons. Suffice, if he mentions the purpose for which the complaint is forwarded. In the instant case, learned Additional Public Prosecutor would submit, learned Magistrate has clearly mentioned that he forwarded the complaint to S.H.O., Nandalur Police Station for investigation and for registration of the case. Since he was not taking cognizance, the question of recording any reasons does not arise. Therefore, there is no defect in the impugned order of the learned Magistrate, he emphasized. To buttress his argument, learned counsel relied upon the decision of the Apex Court in Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy5; judgment of the 4 2015 LawSuit (SC) 335 5 AIR 1976 SC 1672 UDPR, J Crl.P.No.4230 of 2019 4 Apex Court in Criminal Appeal No.298 of 2011 [Smt. Mona Panwar v. The High Court of Judicature at Allahabad].
5. Nextly he argued that non filing of sworn affidavit by the complainant is a curable defect and therefore, the Magistrate can obtain such affidavit from the complainant at any stage of the case. In this regard he relied on a judgment of the High Court of Uttarakhand in Criminal Revision No.252 of 2019 [Commercial Toyota through its General Manager Sales Shri Abhinav Khosla v. State of Uttarakhanad].
6. Now the point for consideration is whether there are merits in the Criminal Petition to allow?
7. POINT: Admittedly in this case, the complainant filed a private complaint under Section 200 Cr.P.C. before the learned Judicial First Class Magistrate, Nandalur, which was forwarded to the Nandalur Police under Section 156(3) Cr.P.C.
Section 156(3) Cr.P.C. reads thus:
"Any magistrate empowered under Section 190 may order such an investigation as above mentioned".
8. Thus, Sub-section (3) empowers a Magistrate to order a Police enquiry in a case where Magistrate does not himself issue process at once. This Sub-section enables a Magistrate to order the investigation of an offence of which he may have taken cognizance under Section
190. It is pertinent to note that the Magistrate can forward the UDPR, J Crl.P.No.4230 of 2019 5 complaint for investigation even without the necessity of examination of the complainant. Investigation under Section 156(3) Cr.P.C. is permissible only for cognizable offence. Since forwarding of the complaint is made under this section before taking cognizance, this exercise is generally regarded as forwarding in pre-cognizance stage.
9. Then the pertinent question is whether a Magistrate can simply forward the complaint to Police for investigation under Section 156(3) Cr.P.C. or duty is cast on him to record reasons for such forwarding the complaint. Law on this aspect is no more res-integra. The Apex Court and various High Courts have held that on receiving the complaint, a Magistrate has to apply his mind to allegations in the complaint upon which he may proceed at once to take cognizance or he may order for registration of F.I.R. and for investigation. The order passed by the Magistrate must indicate application of mind and where the order passed under Section 156(3) Cr.P.C. is without non- application of mind, the said order would be unsustainable.
(a) In Anil Kumar's case (1 supra), the Apex Court exhorted that the application of mind by the Magistrate should be reflected in the order, the mere statement that he has gone through the complaint, documents and heard the complainant, as such as reflected in the order will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C. should UDPR, J Crl.P.No.4230 of 2019 6 be reflected in the order, though a detailed expression of his views is neither required nor warranted.
(b) In S.Purnachandra Rao's case (2 supra), a learned Judge of this court on referring Anil Kumar's case and other decisions has observed that a Magistrate, while either referring the case to the Police under Section 156(3) Cr.P.C. or while ordering investigation into a non-cognizable offence under Section 155(2) Cr.P.C., has to show application of mind to the facts of the case. It may not be necessary for the Magistrate to pass a reasoned order.
However, the order under reference or order directing registration of a non-cognizable offence should contain some information showing application of mind to the case on hand.
(c) In Anne Srinivasa Rao's case (3 supra), a learned Judge of this Court while referring the above cases, expressed similar opinion.
(d) In Dr. Anil K. Khandelwal v. Sri Maksud Saiyed6, the Gujarat High Court also, has expressed similar view.
10. Thus, the law is clear to the effect that before forwarding a complaint under Section 156(3) Cr.P.C. to the Police for investigation, the Magistrate has to succinctly give reasons which weighed him to forward the complaint for investigation by Police. In view of the above jurisprudence on the issue, the counter argument of the learned 6 2006 Crl J 3180 UDPR, J Crl.P.No.4230 of 2019 7 Additional Public Prosecutor cannot be accepted. The decisions cited by him are on a different legal proposition.
(a) In Devarapalli Lakshminarayana Reddy's case (5 supra), the Apex Court was engaged with the question, whether a Magistrate can refer a complaint to Police for investigation under Section 156(3) Cr.P.C when it appears that the complaint discloses an offence triable exclusively by the Court of Sessions. In that context, the Apex Court has observed that the power under Section 156(3) Cr.P.C. and the power under Section 202(1) operate in distinct spheres at different stages. The first one is exercisable at the pre-cognizance stage and the second one at the post cognizance stage. However, in the above decision, the Apex Court has not discussed as to whether or not a Magistrate shall record reasons while forwarding the complaint to Police under Section 156(3) Cr.P.C.
(b) Smt. Mona Panwar's case is also on a different principle. The facts are that the complainant therein filed private complaint under Section 200 Cr.P.C. before the learned Judicial Magistrate II Court, Saharanpur, U.P. under Section 156(3) Cr.P.C. for the offence under Section 376 IPC with a request to forward the complaint to the Police for investigation. Learned Magistrate having called for a report from concerned police and confirming that no complaint was registered by them on the report given by the complainant, directed the office to register the complaint and post before the Magistrate on a given date instead of referring the complaint to the police under Section 156(3) Cr.P.C. Aggrieved, the UDPR, J Crl.P.No.4230 of 2019 8 complainant filed criminal miscellaneous application under Section 482 Cr.P.C. before the High Court of Allahabad. A learned Single Judge deprecated the order of the learned Magistrate and also passed remarks against her for non-application of mind and directed that the complaint be forwarded to police for investigation under Section 156(3) Cr.P.C. Aggrieved by the disparaging remarks, learned Magistrate filed a Criminal Appeal before the Apex Court for expunging the remarks made against her. In that context, the Hon'ble Apex Court discussed the powers of a Magistrate under Section 156(3) Cr.P.C. vis-à-vis Section 200 Cr.P.C. and 202 Cr.P.C. and observed that a Magistrate can under Section 190 of the Code ask for investigation by the police under Section 156(3) of the Code before taking cognizance or it can examine the complaint upon oath and the witnesses present, if any, as mentioned in Section 200 of the Code and proceed further with the matter as provided under Section 202 of the Code. Ultimately the Apex Court upheld the action of the learned Magistrate and expunged the remarks made by the High Court against her. It must be noted the Apex Court has not expressed any opinion as to whether or not a Magistrate has to record reasons while forwarding the complaint under Section 156(3) Cr.P.C. for investigation. Thus, the aforesaid decisions will not help the arguments of the learned Public Prosecutor.
UDPR, J Crl.P.No.4230 of 2019 9
11. In the instant case, learned Judicial First Class Magistrate, Nandalur, while forwarding the complaint under Section 156(3) Cr.P.C. passed the following order:
"Forwarded the complaint to the S.H.O,. Nandalur P.S. for investigation and for registration of the case."
12. Needless to emphasise the Magistrate has not recorded the reasons which weighed with him to forward the complaint to the police. As observed in the above citations, though not a vivid description, the Magistrate was required to explicate succinctly the reasons which prompted him to forward the complaint under Section 156(3) Cr.P.C. Since such reasoning is soaringly absent, the impugned order suffers legal infirmity.
13. So far as the other requirement is concerned, in Prinyanka Srivastava's case (4 supra) the Hon'ble Apex Court observed thus:
"27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can UDPR, J Crl.P.No.4230 of 2019 10 also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
14. It appears in the instant case the complainant has not filed a sworn affidavit in compliance of the mandate in the above decision. Of course, as rightly submitted by the learned Public Prosecutor and as is held by High Court of Uttarakhand in Commercial Toyota's case, it is a curable defect and the Magistrate can direct the complainant to file sworn affidavit at any stage.
15. Thus, at the outset, the impugned order of the learned Magistrate in referring the complaint under Section 156(3) Cr.P.C. suffers legal infirmity for not recording reasons and therefore, consequential registration of F.I.R. basing on the impugned order is not legally sustainable and hence, the F.I.R. is liable to be quashed. In similar circumstances, in S.Purnachandra Rao's case (2 supra) and in Anne Srinivasa Rao's case (3 supra), learned Judges of this Court remanded back the matter to concerned Magistrate directing him to pass an order showing application of mind to the facts in issue while referring the case to police for investigation and to follow pre- conditions laid down by the Hon'ble Apex Court in Priyanka's case while referring the case to the concerned police for investigation. Therefore, following the afore stated precedents, similar order can be passed in the instant case.
UDPR, J Crl.P.No.4230 of 2019 11
16. In the result, this Criminal Petition is allowed and F.I.R. in Cr.No.82/2019 on the file of Nandalur Police Station, YSR Kadapa District, is quashed and the impugned order of the learned Judicial First Class Magistrate, Nandalur dated 04.06.2019 is set aside and the matter is remanded back to concerned Magistrate directing him to pass an order showing application of mind to the facts in issue. If he proposes to refer the case to police for investigation under Section 156(3) Cr.P.C., he shall direct the complainant to file sworn affidavit in the light of the direction given by the Apex Court in Priyanka Srivastava's case (4 supra).
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 28.08.2019 DSH / MVA Note: Issue C.C. by 29.08.2019 (B/o) MVA