Partly allowed

Kartika Srihari v. Rachamadugu Venkata Ramana Gupta

Andhra Pradesh HC15 Feb 2023CRLP/2369/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition seeking to quash proceedings. Finding that the Magistrate failed to assign reasons for granting permission to investigate a non-cognizable offence under Section 155(2) Cr.P.C., the Court set aside the order and remanded the matter for a reasoned decision.

What did the court decide?

The order of the Judicial Magistrate of First Class, Allagadda dated 09.12.2020 granting permission to investigate was set aside and the matter remanded for a detailed reasoned order.

Kartika Srihari Vs Rachamadugu Venkata Ramana Gupta — Quashing and FIR | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH ::

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WEDNESDAY, THE FIFTEENTH DAY OF §1 TWO THOUSAND AND TWENTY THR^^

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PRESENT

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THE HONOURABLE SRI JUSTICE NINALA JAYASURYA^^ CRIMINAL PETITION NO: 2369 OF 2021

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Between:

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Kartika Srihari, S/o K. Padmanabaiah Shetty, Aged-about 46. years, Oct, Business R/o H.No.1/131, Railway Station Road, Gooty Town, Kurnool District.

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AND

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...PETITIONER/ACCUSED !

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Rachamadugu Venkata Ramana Gupta, S/o R. Srinivasulu, Aged about 52 years, Hindu R/o H.No.7/129.Main Bazar, Chagalamarri Village and Mandal, Kurnool District.

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The State Of Andhra Pradesh, Rep. by Public Prosecutor, High Court of AiP.

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...RESPONDENTS

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in ,l the Memorandum of Grounds of Criminal Petition, the High Court pleased to Squash the proceedings against the petitioner/accused in Crime No. 320 of 2020 of Chagalamarri, Police Station. KurnopI District.

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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 B S REDDY, Advocate for the
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Petitioner and the Asst. Public Prosecutor on behalf of the .Respondent No.2 and of Mr.
Syed Kaleemulla, Advocate for the Respondent No. 1; s
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The Court made the following:
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THE HON'BLE SRI JUSTICE NINALA JAYASURYA

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CRIMINAL PETITION NO.2369 of 2021

Between

Kartika Srihari’

Petitioner/Accused

And

Rachamadugu Venkata Ramana Gupta

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The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Amaravati.

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Amaravati. Respondents Counsel for the Petitioner Mr.B.S.Reddy

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Counsel for the 1^ Respondent Mr.S.Kaleemulla Counsel for the Z*** Respondent Learned Public Prosecutor

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ORDER:

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Heard learned counsel for the petitioner. Also heard Mr.S.Kaleemulla, learned counsel for the respondent and learned Assistant Public Prosecutor representing the 2*** respondent-State.

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The present Criminal Petition is filed seeking to quash the proceedings against the petitioner/accused in Cr.No.320 of 2020 on the file of Chagalamarri Police Station, Kurnool District. The said crime is registered against the petitioner for the offence punishable under Section 506 of the Indian Penal Code (for short 'IPC').

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The 1"^ respondent/complainant on 17.12.2020' lodged a complaint against the petitioner/accused, inter alia, stating that his brother-in-law i.e., the petitioner herein is trying to occupy the property of Rachamadugu Rural Development Society, that on coming to know about the same, the 1®^ respondent questioned him as to how he can grab the property of the Society and on that the petitioner alleged to have threatened the 1* respondent. It is also stated that on 24.11.2020, the petitioner called the 1®^ respondent over phone and when one Yesu, who is the driver of the 1®‘ respondent attended the call, the petitioner told him that he is planning to kill the 1®‘ respondent and inform him to be careful. In view of the nature of the allegations, the police submitted a requisition to the Learned Judicial Magistrate of First Class, Allagadda along with the complaint seeking permission to investigate the case as required under Section 155(2) of Cr.P.C and the learned Magistrate by an order dated 09.12.2020 granted permission to investigate the case against the unknown accused for the offence punishable under Section 506 of IPC. Thereafter, the police registered the case against the petitioner in Cr.No.320 of 2020 for the alleged offence punishable under Section 506 of IPC.

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The learned counsel for the petitioner/accused, inter alia, submits that the allegations levelled against the petitioner are made with a view to implicate the petitioner in a criminal case, as the 1®^ respondent who is

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none other than the brother-in-law of the petitioner developed certain ill-feelings against the petitioner. He submits that the petitioner is innocent and he is falsely Implicated in the above said crime with a mala Ude intention and to put pressure on the petitioner's wife, as she is asking for share in the property, which belongs to her father. He further submits that from the material on record, it is evident that the offence alleged against the petitioner is a non-cognizable offence and the learned Magistrate by an order dated 09.12.2020 granted permission to conduct investigation into the case by a cryptic order, in a routine manner, without application of mind or by giving any reasons. He submits that the order passed by the learned Magistrate is not sustainable in law, in the absence of any reasons passed on application of mind. The learned counsel for the petitioner while placing reliance on the decisions of the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad in S.Purnachciindra Rao vs. State of Andhra Pradesh^ and Rajesh Kumanand Ors. Vs. State of Telangana and Ors.^ etc., seeks to allow the Criminal Petition.

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. 5. The learned Assistant Public Prosecutor and the learned counsel appearing for the 1* respondent on the contrary contended that the arguments advanced on behalf of the petitioner are misconceived and

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2014 (2) ALD (CrI.) 674

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’ 2019 (1) ALD (CrI.) SST **

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liable to be rejected. They submitthat the order of the Learned Magistrate according permission to the police to investigate the crime cannot be found fault with, as the said order was passed after prima facie satisfaction that the contents in the complaint constitute commission of a non-cognizable offence. They submit that recording of reasons is not mandatory and at any rate the petitioner would have an opportunity to prove his innocence by adducing evidence at the time of Trial. They further contend that on mere technicalities, the petitioner is seeking to stall further proceedings and there are no bona fides in his attempt. They accordingly submit that there are no merits warranting interference by this Court in exercise of inherent powers under Section 482 Cr.P.C and prays for dismissal of the Criminal Petition.

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This Court has considered the submissions made and perused the material on record. Before dealing with the contentions, it would be appropriate to extract the order passed by the learned Magistrate dated 09.12.2020, which reads thus:

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ORDER

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"Permission is hereby accorded to investigate the case against the unknown accused for the offence punishabie U/Sec.5O6 ofIPQ asper Sec. 155 (2) Cr.P.C."

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III""

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Referring to the above said order as noted above^arguments were advanced by the learned counsel for the petitioner/accused that the said order is unsustainable as no reasons were assigned, much less, by application of mind.

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In S.Purnachandra Rao referred to supra, a learned Judge was dealing with a quash petition against an order passed by the Learned IX Additional Chief Metropolitan Magistrate, Hyderabad granting permission to the police to conduct investigation for the offences punishable under Sections 504, 506 and 120-B of IPC, which are non-cognizable. While dealing with similar contentions, as advanced in the present case, the learned Judge formulated the point for consideration as to whether the order impugned therein warrants interference of the Court for not giving reasons while directing the police to investigate a non-cognizable offence. The learned Judge referred to the settled legal position and definition of the word "Order" ascribed by Oxford English Dictionary. The learned Judge in the ultimate analysis of the matter set aside the order passed by the learned Metropolitan Magistrate and remanded the matter for passing an order by due application of mind. It may be apposite to extract the relevant portion of the decision of the learned Judge for ready reference:-

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“15. Therefore the word Order; in Section 155(2) and Section 156 (3) Cr.P.C., cannot be lost sight of as the same assume lot of significance. It is always said that reasons are the lifelines of an order.

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Dealing with the importance of giving reasons while passing orders, the Apex Court in Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota Vs Shukla and Brothers held as under :

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“A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non- recording of reasons could lead to dual infinnities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper ttie proper administration of justice. These principles are not only applicable tc administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons, causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the highej’ court in the event ofchallenge to that judgment.”

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Further, under Section 155 (2) Cr.P.C., it is always open to the Magistrate either to grant permission or refuse to grant permission. When such a discretion is vested in the Magistrate, it is desirable that the Magistrate shall give reasons while empowering the police officer to investigate into a non-cognizable offence, so that the aggrieved person, wall be in a position to know the reason for acceptance or rejection of his application, otherwise there is every possibility of misuse of Section 155 (2) Cr.P.C. In case such a power is given to a police officer, he may misuse his official position and harass the accused person (Sajjal Aggarwal Vs State of Andhra Pradesh).

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In Tilaknagar Industries Ltd., and Others Vs State of A.P., and another , State of Haryana and Others Vs Bhajan Lal and Others , the Apex Court held that the statutoiy safeguard given under Section 155(2) Cr.P.C., of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexatious investigation.

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«=»=-

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A Full bench of Allahabad High Court in Shyam Lal Sharma Vs King Emperor, held as under :

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■‘Section 155 Cr.P.C., occurs in Chapter XIV of the Code, which deals with investigation of the offence. It makes a marked distinction between cognizable and non-cognizable offences.' It authorizes police officer incharge of a police station ta investigate the cognizable offence without the order of a Magistrate, but forbids the police officer from investigating a non-cognizable case unless, ordered by a Magistrate to do so. Section 155 (2) Cr.P.C., shall deal with this matter and reads thus :

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“No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class, having power to try such case or commit the same for trial, or of a presidency Magistrate.

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It is evident that it was intended by this piece of legislation that a noncognizable oITence could not be investigated by the police unless, the Criminal Court possessed of necessary jurisdiction, is moved by a complainant to take cognizance of the offence or unless a Magistrate of the description mentioned in the Section, considers it desirable that the offence should be investigated, the Section occurs in a statute dealing with administration of criminal justice which is administered in public interest and not in the interest of any private individual. It could not have been intended, therefore, that a Magistrate should order the investigation arbitrarily or capriciously. On the other hand, it may be legitimately assumed that it was intended that before making the order of investigation, he would carefully consider all the relevant circumstances, that make it desirable that a non-cognizable offence should be investigated in public interest.”

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From the above, it is clear that the 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. 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.”

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In the light of the above clear legal exposition and on appliication of the same to the facts of the present case, the contentions advanced by the learned counsel for the petitioner merits acceptance. 10. Even, in Rajesh Kumar and Ors referred to supra another learned Judge of the High Court of State of Telangana while referring to S.Purnachandra Rao's case expressed a similar view, set aside the order of the learned Magistrate in according permission to the police for investigation without assigning reasons and remanded the matter to the learned Magistrate for passing orders afresh. 11. The above referred decisions, in the considered opinion of this Court, are squarely applicable to the facts of the present case and therefore the submissions made by the learned counsel for the respondents are rejected. 12. In the result, the Criminal Petition is allowed. The order of the Learned Judicial Magistrate of First Class, Allagadda dated 09.12.2020 is set aside and the matter is remanded back to the learned Magistrate for passing a detailed reasoned order, by due application of mind to the facts in terms of the decisions referred to above. As a sequel, all pending

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applications shall stand closed.

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//TRUE COPY//

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SD/- B. PRASADA RAO ASSISTANT REGISTRAR SECTION OFFICER

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To, 1. The Judicial Magistrate of First Class, Allagadda. 2. The Station House Officer, Chagalamarri Police Station, Kurnool District. 3. One CO to SRI. B S REDDY Advocate [OPUC] 4. OneCCto SRI. KALEEMULLAS Advocate [OPUC] 5. Two CC’s copies to Public Prosecutor, High Court of Andhra Pradesh at Amaravati ‘ lOUT]

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. 6. Two CD Copies SRM Cnr

HIGH COURT

SRM

DATED:15/02/2023

r I 0 8 SEP 2023 a)