Allowed

M.Dhana Koteswara Rao v. State of Ap

Andhra Pradesh HC7 Dec 2023CRLP/2291/2019

Case brief

AI extract

What is this about?

This High Court quashed offences against petitioners due to statutory violation by the Magistrate failing to record the complainant's sworn statement as required under Section 200 Cr.P.C. in an offences triable by the Sessions Court.

What did the court decide?

The impugned proceedings in Sessions Case No. 4 of 2019 were quashed; matter remanded to Magistrate for recording sworn statement.

M.Dhana Koteswara Rao Vs State of Ap — Civil Procedure and Limitation | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THURSDAY, THE SEVENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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CRIMINAL PETITION NO: 2291 OF 201Q

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Between;

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Rao, aged about 58

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Sna SsWcT’’'’" Penamaluru village and Mandal,

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54 years, r/o D.No. 4-

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Mandal, Krishna District.

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Penamaluru village and Mandal, Krishna DistriS °

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D°No qpf M s/o KRKSV Prasad Aged about 39 years, r/o Distdct^’^^^ ^ Shivalayam, Penamaluru village and Mandal, Krishna

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...Petitioner/AccusedNo.2 to 5

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AND

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1; The State of Andhra Pradesh, through Station House Officer , Penamaluru Wavaf Pubfc ProsecS, High Court,

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Dn’o 4 M7‘’Npar'?'hi!;®' ® a 1®™ ^ged about 5B years r/o U NO. 4-237,Near Chinagudi, Penamalur village and Mandal, Krishna District.

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...Respondent/Complainant

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sgstlis:-ss2-i

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I.A. NO; 1 OF 2niQ

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is'r.is-raijayawada, pending disposal of the r?fsmain Criminal Petition~Ss="Judge,

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I.A. NO: 1 OF 7m7

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in he Memorandum of Grounds of Criminal Petition, the High Court may be pleased to pass orders extending the interim order dated 01-10-’2020 in CrI P No 2291 of 2019 until for the orders in the interest of Justice.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri G V R Choudary .Advocate for the Petitioner nos.1 to 4 and the Public Prosecutor, High[ Court of Andhra Pradesh on behalf of the Respondent No.1 and of Sri SVSSSiva Ram, Advocate for the Respondent No.2.

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The Court made the following:

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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CRIMINAL PETITION No.2291 OF 2019

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ORDER:

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The present Criminal Petition is filed under Section^482of the Code of Criminal Procedure, 1973 (Cr.P.C.), praying^to call for the records relating to the charge sheet in Sessions^CaseNo.4 of 2019 on the file of the IV Additional Metropolitan^Sessions Judge, Vijayawada, and quash the same. 2. The 2"^^ respondent herein, who is the de facto complainant, has lodged a report to Penamaluru Police^Station alleging that when he reached near Penamaluru Old Police Station, the accused Nos.l to 5, viz., (1) Koya Ananda^Vara Prasad, (2) Marupudi Dhana Koteswara Rao, (3) Kilaru Anjaneyulu, (4) Kilaru Subhakar and (5) Koya Srinivasa Chakravarthy, have restrained him, abused him in vulgar language and threatened him with dire consequences and stabbed him indiscriminately and beat him with an iron^rodon his head and on different parts of the body. 3. Basing upon the said allegations, the police has registered the F.I.R.No.64 of 2016 dated 27.01.2016 for the offences punishable under Sections 147, 148, 324, 307, 341 r/w 149

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I.P.C. against the accused. The police after due investigation, has laid the charge sheet before the 1 Metropolitan Magistrate, Vijayawada City, deleting the names of A2 to A5, who are arrayed as accused by the complainant in the F.I.R., by adding the names of A6 to A10, who are not arrayed in the^F.I.R.

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Aggrieved by the said deletion of the names of A2 to A5, the 2nd respondent herein filed a protest petition before^theaforesaid Metropolitan Magistrate to take cognizance against^A2 to A5. Basing upon the protest petition, the learned Metropolitan Magistrate by an order dated 05.01.2018 in C.F.No.4552 of 2017 in Crime No.64 of 2016 of Penamaluru Police Station,^directed the Sub Inspector of Police, Penamaluru Police Station to mention the names of Marupudi Dhana Koteswara Rao {A2), Khilaru Anjaneyulu (A3), Kilaru Sudhakar (A4) and Koya Srinivasa Chakravarthy (A5) in the charge sheet.

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Aggrieved by the said order of the learned Metropolitan Magistrate, dated 05.01.2018, the accused have filed Criminal Revision Case Nos.575 and 660 of 2018 before the High^Courtof Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. The High Court by an order^dated 09.07.2018, has allowed the Criminal Revision Cases basing on

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the statement of the Public Prosecutor. The learned Public Prosecutor has submitted that after filing of the charge sheet by the police and after recording the statement of the complainant, in pursuant to the protest petition, either the Magistrate^hasto take cognizance of the offence and issue summons to the accused or he can re-direct the investigating agency^toconduct investigation properly, inter alia observed that the^procedure adopted by the learned Magistrate is not according^tolawand remanded the case to the learned Magistrate to consider the matter afresh and pass appropriate orders based on^thecontents of the charge sheet and the statement of L.W. 1 as^perlaw. 6. On remanding the matter by the High Court, the learned Magistrate, by an order dated 30.11.2018, on perusal of the documents filed in the Court and has found that there is a prima facie case against the accused Nos.2 to 5 and committed^the case to the Court of Sessions under Section 209 of^Cr.P.C.

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Aggrieved by the order in taking cognizance against^A2 to A5 and committing the accused to the Sessions Court, the present Criminal Petition is filed on the ground that^theCourt below has erred in taking cognizance without recording the

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sworn statement of the 2"^ respondent-de facto complainant herein, hence, urged to quash the proceedings. 8. Learned counsel for the petitioners has relied on the judgment of the Karnataka High Court in Sri K. Venkataramaiah and others vs. Sri Katterao^ and also relied on the judgment of Madras High Court in M.Govindaraja Rllai vs. Thangavelu^Pillai (Deceased by LRs.p and the judgment of Allahabad High^Court in Smt. Ganga Chauhan @ Ganga Chauhan and another vs. State of U.P. and another3 for the proposition that the Court cannot take cognizance without examining the complainant as contemplated under Section 200 Cr.P.C. Therefore, prays^toset aside the order dated 30.11.2018. 9. Per contra and in demurrer, learned counsel for the 2nd respondent would submit that non-examination of the 2nd respondent-complainant on oath by the learned Magistrate would be an irregular and it does not vitiate the entire proceedings and he would further contend that the petitioners have not stated that any prejudice which caused to them in nonexamination of the 2nd respondent-complainant on oath and

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ILR2008 KAR474 ^ 1983 Crl.L.J. 917 ^ Dated 03.03.2011 in Case U/S. 482/378/407 No.919^of2011

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further contended that non-examination on oath is a curable defect and on the said ground, the order dated 30.11.2018^need not be set aside, as it is a curable defect and he^alsoreliedon the judgment of the Apex Court in Shivjee Singh vs. Nagendra Tiwary and others'^.

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And the learned counsel for the 2^^ respondent^further submits that a similar issue came up for consideration in the common High Court in Criminal Petition No. 15306 of^2016dated 27.06.2018 and learned Judge after considering plethora of judgments of the Apex Court and different High Courts^hasheld that non-examination of the complainant on oath is^acurable defect. Hence, prayed to dismiss the Criminal Petition. 11. On perusal of the order in Criminal Petition No. 15306^of 2016 albeit the Court has rejected the contention of^theaccused therein observing that non-compliance of Section 200^Cr.P.C.for non-examination of complainant on oath and issue of process under Section 204 of Cr.P.C. is not a ground to quash the proceedings unless it is established by the accused brings to the notice of the Court as to any prejudice caused to them,^thesaid judgment is not applicable to the present facts of^thecaseinthe

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“(2010) 7 see 578

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above said case, though observed that non-examination of the complainant on oath is not a ground to quash the said case, the complainant and witnesses were examined on oath in the said case.

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The other judgment that is relied by the learned counsel^for the 2*^^ respondent in Shivjee Singh’s case (4 supra). 13. In the said judgment, the Supreme Court observed that non-examination of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude Magistrate of jurisdiction to take cognizance and issue process provided^that he is satisfied that prima facie case is made out for doing so. Here in the present case of the Apex Court, there is no proposition was laid for non-examination of the complainant on oath does not vitiate or denude the power of the Magistrate to issue process to the accused, as such the judgment is not applicable to the present facts of the case.

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Now the point for consideration is that non-examination of the complainant on oath as envisaged in Section 200 Cr.P.C. would be a ground to quash the case?

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At this juncture, the relevant Section that is germane^for consideration, keeping in view the context of the case is that

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Section 200 Cr.P.C. and issue of process under Section 204 Cr.P.C., which are extracted hereunder:

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Section 200 Cr.P.C. Examination of complainant.

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A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance^of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

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Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

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(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court^has made the complaint; or

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(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section^192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.

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Section 204 Cr.P.C. Issue of process.—

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(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be— (a) a summons-case, he shall issue his summons for the attendance of the accused, or

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(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to^be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

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(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list^of prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy^of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

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(5) Nothing in this section shall be deemed to affect the provisions of section 87.

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This Court relies on the following judgment for the proposition that how it would affect if non-consideration of mandatory provisions of Sections 200 to 204 of Cr.P.C.

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In Naganagouda Veernagouda Patil vs Maltese H KulkarnP, a Division Bench of Karnataka High Court held that;

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'The consistent view taken in these cases is that since Section 200, Cr.P.C. prescribes that the Court shall examine the complainant that it is not open to the complainant's learned Advocate to conduct the examination-in-chief and that if such a procedure is followed, that it is in breach of the mandatory provisions of Section 200, Cr.P.C. We need to record here that Venkataraman, J. in the decision had occasion to consider the following cases :

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1.1. AIR 1948 Mad 424 : (49 Cri LJ 554) P. N. S. Iyer^v. Nathan; 2. ILR 25 Mad 61 Subramanya v. King Emperior; 3. AIR 1927 PC 44 : (28 Cri LJ 259) Abdul^v. King Emperor; 4. AIR 1947 PC 67 : (48 Cri LJ 533) Pukuri Katayya v. Emperor; 5. AIR 1922 Mad 443 : (23 Cri LJ 691); In Re ; Ramaswami lyenger; 6. AIR 1938 Bom 50 ; (39 Cri LJ 214) Desaibhai Kushalbai; 7. AIR 1936 Pat 145 ; (37 Cri LJ 285) Ramjas v. Purulia; We need to record here that the learned Advocates who represented the petitioners vehemently submitted that if the complainant's (learned Advocate) were to be permitted to cany out the examination-in-chief that^it was not only a breach of the provisions of Section 200, Cr.P.C. but that it would completely nullify the provisions of that section and would in fact have the

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’ 1998 CRL.L.J. 1707

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totally opposite effect of what was originally intended by the Legislature when this section was incorporated in the Cr.P.C. in 1973. They have demonstrated to us, and perhaps with considerable justification that a private complaint presented to the learned Magistrate is invariably drafted by an Advocate and that therefore, there could be a certain degree of padding, that there could be also a skillful orientation of facts, a clever slant in the projection and a skillful effort to bring^the complaint within the ambit of the four corners of a penal section and that the sum total of this artful exercise very often results in process being issuedⁱⁿ criminal cases against the opposite party even though there may not have been justification to do so. The learned Advocates have pointed out that this sets of^a total chain re-action in so far as a lot of harassment is caused to the accused even during the service of process and thereafter, and that having regard to the load on the trial Courts and the appeal Courts that^an accused is required to contend with the proceeding^for a long period of time, to undergo harassment and expenditure, as it is an uphill task to demonstrate finally that there was no justification for the issue of process. We do see considerable force in this argument because the whole purpose of enacting Section 200, Cr.P.C. was in order to weed out unjustified litigation and the immediate fall out of such unjustified complaints is the heavy burden on the Courts until those proceedings are finally disposed of Learned Advocates did also demonstrate to us the inevitable

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side effects of such litigations which could be used to coerce parties into settlements which is not the intention of the law and judicial process can never^be abused with this end in view. The effort on the part^of the learned Advocates was directed towards impressing on the Court the absolute need to tighten up the scrutiny procedure for purposes of ensuring that only valid and genuine complaints survive and that all the others are eliminated at the scrutiny stage. They have therefore submitted that the whole purpose of enacting Section 200, Cr.P.C. would be frustrated completely if the complainant's learned Advocate were to be permitted to carry out the examination-in-chief because in that event the complaint would be bodily reproduced in the examination-in-chief and there would be less scope for the Presiding Judge to be able to assess the genuineness of the grievance that has been projected. It was therefore submitted that it is absolutely imperative that the learned Advocate be precluded from taking any part in the scrutiny process so that the Court has an unrestricted opportunity of independently examining the complaint, ascertaining from the complainant and the witnesses as to what the true position is and deciding whether it should be entertained or not."

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From the reading of the above judgment in order to ascertain the true position, the examination of the complainant

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on oath is necessary as the affidavit of the complainant is invariably will be drafted by the advocate. 19. In Ramachander Rao v. Boina Ramachander^, it has been held by a Division Bench of the Andhra Pradesh High^Courtthat the proviso to Section 202 (2) Cr.P.C. makes it clear that if the offence complained of is triable exclusively by a Court of Session, the Magistrate shall examine all the witnesses on oath. They have laid emphasis on the meaning of the word “all” and stated that “all” does not mean some”. According to the Bench, the examination of the witnesses is not a mere formality, but a mandatory direction which has to be complied with. 20. When once the Magistrate resorts to take cognizance^ofthe offence which is triable exclusively by a Court of Sessions, by application of Section 200 Cr.P.C., it is imperative on the part of the Magistrate after taking cognizance of the offence to call upon the complainant to examine him on oath. The failure on the part of the Magistrate to comply with this statutory direction given under Section 200 Cr.P.C. would vitiate the further proceedings taken by the Magistrate, as the Section specifically says when

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1980 CRL.L.J. = 1980 Mad. L.J. (Crl.) 67

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Magistrate takes cognizance, shall examine the complainant on oath.

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In the light of the above observations, the Criminal^Petition is allowed and the impugned proceedings in Sessions^CaseNo.4 of 2019 on the file of the IV Additional Metropolitan Sessions Judge, Vijayawada, in so far as the petitioners/A2 to AS are The matter is remanded to the concerned, is hereby quashed. learned Magistrate for recording the sworn statement of the complainant, Liberty is given to the complainant to appear before the learned Magistrate for sworn statement. In such event, the learned Magistrate is directed to record sworn

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statement of the complainant and if the learned Magistrate is commit the matter to the satisfied with the material, he may Court of Sessions, and it is needless to say that the^Magistrate shall complete the process within a period of three^weeksfrom the date of receipt of the Order,

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i n As a sequel, interlocutory applications, pending if any

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this case, shall stand closed.

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//TRUE COPY//

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SD/- K. SRINIVASA RAJU ASSISTANT REGISTRAR \

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OFFICER

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To, 1. The First Metropolitan Magistrate Court at Vijayawada. 2. The 111 Metropolitan Magistrate Court, Vijayawada. 3. The Station House Officer, Penamaluru Police Station,^Vijayawada. 4. One CC to Sri. G V R Choudary Advocate [OPUC] 5. One CC to Sri SVSS Siva Ram Advocate [OPUC] 6. Two CCs to Public Prosecutor, High Court of Andhra^Pradesh[OUT] 7. Three CD Copies

Pmg

p VI

HIGH COURT

DATED:07/12/2023

ORDER

CRLP.No.2291 of 2019