Dismissed

Yenugupalli Vijay Kumar v. State of Andhra Pradesh.

Andhra Pradesh HC4 Dec 2020WP/19860/2020

Case brief

AI extract

What is this about?

Petitioner sought writ directing police to conduct further investigation under Section 173(8) Cr.P.C. after submitting an explanation. The Court dismissed the petition, holding that Section 173(8) applies only after a final report is filed and investigation is complete.

What did the court decide?

Writ petition dismissed; no costs awarded; miscellaneous petitions pending to be closed.

Yenugupalli Vijay Kumar Vs State of… — Civil Procedure and Limitation | Andhra Pradesh HC (2020)

¶1

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

¶2

WRIT PETITION NO.19860 of 2020

¶3

ORDER :

¶4

This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:

¶5

“to issue a writ, order, or direction, more in the nature of writ of mandamus under Article 226 of the Constitution of India, declaring the action of the respondents, particularly 5^th respondent in not taking further steps in pursuance explanation filed by petitioner dated 25.03.2020 in commencing and concluding the investigation in terms of Section 173 (8) Cr.P.C. in Cr.No.208/2019 u/s 506 r/w Section 34 IPC Dated 13.09.2019 of Thondangi PS, EG District relating to dispute of civil in nature, and keeping it pending intentionally, wilfully, without prima facie for trial to the extent of petitioner is concerned, as highly arbitrary, illegal, discriminatory, malafide, violating Article 14, 19 (1) (g) and 21 of the Constitution of India, and contrary to law laid down in case of “Govind Prasad Kelriwal v. State of Bihar” including Fiona Shirkhande case respectively, and issue consequential directions, directing the respondents, particularly the 5^th respondent, to commence and conclude investigation in terms of Section 173 (8) Cr.P.C in Cr.No.208/2019 u/s 506 r/w Section 34 1PC Dated 13.09.2019 of Thondangi PS, EG District is concerned.”

¶6

The petitioner is a member of Scheduled Caste [Mala] Community and an engineering graduate, presently residing at Bendapudi Village, Thondangi Mandal, East Godavari District, which is declared as Estate, wherein Y.Kamaiah, s/o Ayyappa, had absolute rights over Ac.2.92 cents in Sy.No.413/1, 413/6, but after advent of Estates Abolition Act, the Settlement Officer, issued Ryotwari Patta on 27.01.1960, thus, he became absolute owner and possessor of the same. Consequently, revenue authorities mutated the name of one Y.Kamaiah as Pattedar holder in the revenue records. The said Y.Kamaiah is paternal uncle to the petitioner, who admittedly during his life time, bequeathed an extent of Ac.2.92 cents in Sy.No.413/1, 413/6 situated in Bendapudi Village,

¶7

MSM,J WP_19860_2020

¶8

¶9

Thondangi Mandal, East Godavari District, in favour of the petitioner.

¶10

The Director, TCP, Guntur District, by proceedings Dis.No.1229/16/R dated 30.03.2016 issued technical clearance for conversion of agricultural land into non-agricultural land for the land in an extent of Ac.2.92 cents in Sy.No.413/1 and 413/6 in Bendapudi Village, Thondangi Mandal, East Godavari District, without physical verification. But based on unilateral resolution of Panchayat Secretary, Bendapudi Gram Panchayat, for the reasons best known to him, respondent No.6 established M/s Royal Import and Exports, East Godavari District on the petitioner’s land, contrary to proviso II (1 to 4) and (6) and proviso 12 and 13 of A.P. Panchyat Raj Act, 1994 issued in G.O.Ms.No.67 dated 26.02.2002 and amendments in G.O.Ms.No.274 dated 12.06.2007, without disposing the representation of the petitioner dated 07.09.2019. Thereby, the petitioner filed W.P.No.8534 of 2020 before this Court, after hearing, this Court granted interim order dated 08.05.2020, directed the respondents not to proceed with any constructions on the disputed land.

¶11

Respondent No.6 without obeying the orders of this Court and to shield his illegal activities, created fabricated documents as counter blast to the representation and interim direction issued by this Court, out of grudge and prejudice. As a process of revenge tactics, filed a complaint dated 21.08.2019 before respondent No.5 alleging that the petitioner is interfering with his business, due to which, he incurred loss, thereby requested to take action, even though it is not known how the petitioner is responsible for functioning of business of respondent No.6. But the respondent No.6 did not file any material before respondent No.5 to determine how he

¶12

MSM,J WP_19860_2020

¶13

¶14

incurred loss. Therefore, the dispute is purely civil in nature, but converted the same into criminal. But respondent No.5 without conducting enquiry, straight away registered Crime No.208 of 2019 under Section 506 read with Section 34 of Indian Penal Code (for short “I.P.C.”) giving a criminal colour to civil dispute to the complaint despite an interim direction in writ petition No.8534 of 2020, implicated the petitioner intentionally to take revenge against the petitioner.

¶15

In the process of investigation, respondent No.5 issued notice under Section 41-A of Cr.P.C. dated 24.03.2020 calling upon the petitioner to submit explanation. Accordingly, the petitioner submitted explanation denying the allegations levelled against him while contending that he is the owner of the property and that the registration of crime is against the principles laid down in various judgments, more particularly in “Vikram Johar v. State of Uttar Pradesh” (Criminal Appeal No.759 of 2019 dated 26.04.2019). Therefore, permitting respondent No.6 to proceed with the construction with the connivance of respondent Nos.4 and 5 disobeying the interim order passed in W.P.No.8534 of 2020 dated 08.05.2020, the conduct of respondent Nos.4 and 5 amounts to contempt of Court, thereby they are liable for punishment suo moto for contempt of Court.

¶16

It is further contended that after issuing notice under Section 41-A of Cr.P.C., though the petitioner submitted explanation to the said notice, no further enquiry was conducted. But the petitioner is being called to the police station without any reason; thereby the conduct of respondent No.5 in not completing the investigation within reasonable time is illegal and arbitrary. Consequently, the petitioner prays to direct respondent No.5 to commence and

¶17

MSM,J WP_19860_2020

¶18

¶19

conclude investigation in terms of Section 173 (8) of Cr.P.C in Crime No.208/2019 under Section 506 read with Section 34 of I.P.C. of Thondangi PS, East Godavari District.

¶20

Ms.S.V.Indira, learned counsel for the petitioner, mainly contended that the conduct of respondent No.5 in not completing the investigation in terms of Section 173 (8) of Cr.P.C. after registration of crime despite submitting explanation by the petitioner to the notice issued under Section 41-A of Cr.P.C. is a grave illegality. It is nothing but failure of respondent No.5 being a public officer to discharge public duty, requested to issue a direction to conduct further investigation in terms of Section 173 (8) of Cr.P.C. exercising power of judicial review under Section 226 of the Constitution of India.

¶21

Learned Government Pleader for Home contended that the investigation is in progress, as on today, no final report is filed before the jurisdictional Magistrate. Therefore, question of conducting investigation in terms of Section 173 (8) of Cr.P.C., requested to dismiss the petition at the stage of admission itself.

¶22

Undisputedly, crime No.208 of 2019 on the file of Thondangi Police Station was registered against the petitioner for the offence punishable under Section 506 read with 34 of I.P.C. Prior to registration of said crime against the petitioner, he filed writ petition No.8534 of 2020, obtained interim order on 08.05.2020 restraining respondent No.6 from raising any construction in the disputed land. It is the specific contention of the petitioner that in view of obtaining interim order, respondent No.6 bore grudge against the petitioner, managed respondent Nos.4 and 5, lodged report to wreck vengeance against the petitioner, but such contention is not relevant in view of

¶23

MSM,J WP_19860_2020

¶24

¶25

the specific relief claimed in the writ petition and it is a question of fact to be decided based on the investigation done by the police.

¶26

Notice issued under Section 41-A of Cr.P.C. to the petitioner, is in strictly compliance of guidelines formulated by the Apex Court in “Arnesh Kumar v. State of Bihar¹ ” . Admittedly, the petitioner submitted explanation on 25.03.2020. But, so far no further action was taken against the petitioner and he was not arrested.

¶27

A specific allegation is made in the affidavit that the police calling the petitioner to the police station and subjecting him to harassment. But such conduct of respondent No.5 is also not challenged.

¶28

The main endeavour of the petitioner is that when the petitioner submitted explanation to the notice issued under Section 41-A of Cr.P.C., respondent No.5 has to conduct further investigation in view of the specific allegations made in the explanation to find out the truth or otherwise in the allegations made in the complaint. But no investigation was done. Moreover, the petitioner was subjecting to harassment, requested to issue a direction to conduct further investigation in terms of Section 173 (8) of Cr.P.C.

¶29

Learned Government Pleader for Home contended that in the process of investigation, the petitioner is being called to the police station to ascertain the truth or otherwise in the allegations made against him. Apart from that, the question of conducting further investigation in terms of Section 173 (8) of Cr.P.C. does not arise at this stage.

¶30

According to Section 173 of Cr.P.C. if upon the completion of the investigation, it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground; he

1 (2014) 8 SCC 273

MSM,J WP_19860_2020

may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he is to take necessary steps therefor under Section 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 in the prescribed form furnishing such details. There is no provision for charge sheet in the Cr.P.C. The charge sheet is a form provided under rules framed by the Government.

¶35

Section 173 of Cr.P.C. contemplates submission of only one police report on completion of investigation.

¶36

Thus, it is incumbent upon the police to file final report under Section 173 (2) of Cr.P.C. after completion of investigation. But the request of the petitioner is to direct the respondents to conduct further investigation in terms of Section 173 (8) of Cr.P.C.

¶37

Sub-section (8) of Section 173 of Cr.P.C. provides that the evidence collected by the police after filing the charge sheet can also be produced before the Court subject to the accused being given the usual facilities for copies. This new provision was recommended by the Law Commission in its 37^th and 41^st Reports. In some cases, the Courts had taken the narrow view that once final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and for that matter even to the accused. Under the amended Section 173, the competent Police Officer can examine such evidence and send a report to the Magistrate. Investigation is the process of collection of evidence. That process, temporarily closed for want of material, should yet be capable of being supplemented or

¶38

MSM,J WP_19860_2020

¶39

¶40

restarted, if the circumstances of the case so justified. There is no finality to the investigation or to laying a charge sheet. The right of the police to further investigate is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. Further investigation under Section 173 (8) of Cr.P.C. can be ordered even after cognizance of the case has been taken. The power under Section 156 (3) of Cr.P.C. given to a Magistrate to direct further investigation does not in any way affect the power of the Investigating Officer to further investigate the case under sub-section 8 of Section 173 of Cr.P.C. An accused discharged on final report under Section 173 of Cr.P.C. can be prosecuted on fresh report under Section 8 of Section 173 of Cr.P.C. Supplementary charge sheet cannot be submitted under sub-section 8 of Section 173 of Cr.P.C. without further investigation by the police and without obtaining further evidence against the accused.

¶41

From the above discussion, it is clear that the question of conducting further investigation would arise only after filing final report before the jurisdictional Magistrate under Section 173 (2) of Cr.P.C.

¶42

In the present facts of the case, as narrated in the affidavit, investigation in Crime No.208 of 2019 on the file of Thondangi Police Station is in progress and the petitioner is being called to the police station as part of investigation. Therefore, the question of directing the respondents to conduct further investigation under Section 173 (8) of Cr.P.C. does not arise.

¶43

Though, the petitioner made several allegations about the civil nature of the dispute and giving colour of criminal case, that is not the question sought to be decided by this Court in the entire petition since the request of the petitioner is limited to the extent of

¶44

MSM,J WP_19860_2020

¶45

¶46

conducting further investigation under Section 173 (8) of Cr.P.C. keeping in view the explanation submitted by the petitioner to the notice issued under Section 41-A of Cr.P.C. Hence, this Court is not required to dwell upon the nature of the dispute in view of the limited request.

¶47

It is the elementary principle of law that further investigation under Section 173 (8) of Cr.P.C. can be taken up by the police only after filing final report. But the petitioner is ignorant of such elementary principle while seeking discretionary relief from this Court under Article 226 of the Constitution of India. Filing of such petitions would not serve any purpose; on the other hand, it increases pendency in the Courts. Therefore, the request of the petitioner cannot be accepted at this stage unless the Code of Criminal Procedure is rewritten. Hence, I find that the request of the petitioner cannot be acceded. Consequently, the petition is liable to be dismissed.

¶48

In the result, the writ petition is dismissed. No costs.

¶49

The miscellaneous petitions pending, if any, shall also stand

¶50

closed.

¶51

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

¶52

04.12.2020 Ksp

Yenugupalli Vijay Kumar v. State of Andhra Pradesh.

Case brief

What is this about?

What did the court decide?

Yenugupalli Vijay Kumar v. State of Andhra Pradesh.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K Reddy Sab Vs The State of Andhra Pradesh

Tarlada Lakshmi, Vs The State of Andhra Pradesh

Ravi Subba Rao Vs State of Andhra Pradesh

Jarjana Mohanarao Vs Gonedla Dalappadu

Gokula Krishna Rice Mill Vs Andhra Pradesh Civil Supplies Corporation

Malladi Naga Srinivasa Rao, Krishna Dist Vs Malladi Suvarchala, Guntur Dist