Allowed

A.Subba Rao v. State of Ap

Andhra Pradesh HC20 Feb 2023CRLP/3004/2019

Case brief

AI extract

What is this about?

The High Court quashed an order of cognizance passed by a Judicial Magistrate on a private complaint under Section 190(1)(a) Cr.P.C for Sections 307, 342, and 506 IPC. The Court held the order unsustainable as it failed to reflect application of mind or assign reasons, remanding the matter for a reasoned order.

What did the court decide?

Criminal Petition allowed. Order dated 08.04.2019 by the Magistrate set aside and matter remitted for a reasoned order.

A.Subba Rao Vs State of Ap — Criminal Trial and Appeal | Andhra Pradesh HC (2023)

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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.3004 of 2019

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Between:-

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Athili Subbarao & 8 others … Petitioners And

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

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Yellisetty Bheemanna Dora … Respondents

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Counsel for the Petitioner : Mr.Kalepu Yaswanath Counsel for the 1^st Respondent : Learned Assistant Public Prosecutor Counsel for the 2^nd Respondent : Mr.V.Sai Kumar

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ORDER :

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Heard learned counsel for the petitioners. Also heard learned Assistant Public Prosecutor appearing for the 1^st respondent and Mr.V.Sai Kumar, learned counsel for the 2^nd respondent.

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The present Criminal Petition is filed seeking to quash the Order dated 08.04.2019 passed in P.R.C.No.21 of 2019 on the file of the Court of the Learned IV Additional Judicial Magistrate of First Class, Kakinada, East Godavari District.

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The petitioners are arrayed as Accused Nos.1 to 9 in the said case. The learned Magistrate pursuant to the complaint of the 2^nd respondent under Section 190(1)(a) R/w 200 Cr.P.C, by an Order dated 08.04.2019 took cognizance of the offence for the offences punishable under Sections 307, 342 and 506 of IPC.

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The learned counsel for the petitioners, inter alia, contended that it is a case and counter case between the petitioners and 2^nd respondent/de facto complainant. He submits that the 2^nd respondent filed a complaint against the petitioners for the alleged offences punishable under Sections 342, 326 and 506 R/w 149 of IPC in Cr.No.68 of 2015 on the file of Thimmapuram Police Station and the police after investigation filed a Charge Sheet vide C.C.No.301 of 2016 on the file of the Court of Learned IV Additional Judicial Magistrate of First Class, Kakinada against A.1 to A.7/Petitioners 1 to 7 by deleting the other accused. He also submits that the petitioner No.2 herein filed a complaint against the 2^nd respondent/de facto complainant and others for the offences punishable under Sections 435, 324, 342 and 506 R/w 34 IPC vide F.I.R.No.69 of 2018 on the file of Thimmapuram Police Station and the police after investigation filed Charge Sheet against the 2^nd respondent/de facto complainant and others before the Court of Learned IV Additional Special Judicial Magistrate of II Class, Kakinada and the same was taken on file vide C.C.No.304 of 2017.

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The learned counsel submits that when the said cases are pending, the 2^nd respondent/de facto complainant filed a complaint under Section 190(1)(a) R/w 200 Cr.P.C against the petitioners 1 to 7 herein and two others i.e., petitioners 8 & 9, who are deleted by the police while filing the Charge Sheet in C.C.No.301 of 2016. He submits that the learned Magistrate however, by an order dated 08.04.2019, which is sought to be quashed, took cognizance of the offence and the same is not sustainable for the various grounds raised in the Criminal Petition. The learned counsel for the petitioners while contending that the petitioners are innocent and not committed any offence as alleged, advanced arguments to the effect that the material on record does not disclose commission of an offence, much less, under Sections 307, 342 and 506 of IPC and that unless the ingredients in respect of the offences alleged to have been committed are attracted, the proceedings against the petitioners/accused are not tenable and constitutes abuse of process of Law. The learned counsel also submits that the order under challenge is liable to be quashed, as the learned Magistrate passed the same, without due application of mind, much less, by assigning any cogent reasons. Making other submissions and relying on the decisions of the Hon‟ble Supreme Court in Pepsi Foods Ltd., and another vs. Special Judicial Mgistrate and others¹ and GHCL Employees Stock Option Trust vs. India Infoline Limited² etc., the learned counsel would urge that the quash petition deserves to be allowed.

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1 (1998) 5 Supreme Court Cases 749

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2 (2013) 4 Supreme Court Cases 505

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Per contra, the learned Assistant Public Prosecutor and the learned counsel for the 2^nd respondent/de facto complainant advanced arguments to the effect that the order of the learned Magistrate warrants no interference by this Court. They submit that the learned Magistrate on appreciation of the contents in the complaint and on prima facie satisfaction that the allegations made in the complaint constitute an offence, had taken cognizance of the same and the order is valid, legal and warrants no interference. They further contend that under the guise of the present quash petition, the petitioners are contemplating to avoid Trial of the matter. They submit that such an attempt on the part of the petitioners is not tenable and the Criminal Petition is liable to be dismissed. The learned counsel for the 2^nd respondent also specifically contended that the 2^nd respondent was not in conscious, as he received grievous injuries and as the police have not conducted investigation properly, the complaint under Section 190(1)(a) of Cr.P.C was filed.

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This Court has considered the submissions made and perused the material on record. Though the learned counsel for the petitioners raised several grounds, inter alia, to the effect that the ingredients of the offences registered against the petitioners are not attracted, this Court is not inclined to examine the matter in detail, more particularly, in view of one of the prime contentions that the order of the learned Magistrate is not sustainable, as the same was passed without application of mind and no reasons were assigned while taking cognizance of the offences referred to above against the petitioners.

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8. The order of the learned Magistrate, which is under challenge, reads thus:-

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“Heard and perused the record. I found prima-facie case against the accused 1 to 9 for the offences U/sec.307, 342, 506 of IPC. Hence case is taken on file U/sec.307, 342,506 against A.1 to A.9. The office is directed to register the case as P.R.C., and issue summons to A.1 to A.9 on payment of process. Call on 22-4-2019.”

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The above said order as noted earlier was passed pursuant to a complaint lodged by the 2^nd respondent under Section 190(1)(a) R/w 200 Cr.P.C and as pointed out by the learned counsel for the petitioners, no reasons were assigned while taking cognizance of the offences against the petitioners.

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In Pepsi Foods Ltd., and another referred to supra, the Hon‟ble Supreme Court was dealing with an order passed by a Division Bench of High Court of Judicature at Allahabad (Lucknow Bench) dismissing the Writ Petition filed under Articles 226 & 227 of the Constitution of India, wherein quashing of complaint under Section 7 R/w 16 of the Food Adulteration ct, 1954 was sought for. The Hon‟ble Supreme Court while examining the powers of the Court under Articles 226 & 227 of the Constitution of India and Section 482 Cr.P.C and setting aside the order of the High Court at Para 28 held as follows:-

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“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.”

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11. In GHCL Employees Stock Option Trust ‟s case,

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Hon‟ble Supreme Court at Para 14 opined that “summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record”. 12. However, the Hon‟ble Supreme Court in a recent Judgment in The State

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Of Gujarat vs Afroz Mohammed Hasanfatta³ elaborately dealt with the issues with regard to taking cognizance based upon the Charge Sheet filed by the police under Section 190(1)(b) Cr.P.C and a private complaint under Section 190(1)(a) Cr.P.C, wherein the Hon‟ble Supreme Court at Para 23 held that „in a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file‟ .

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13. In Mehmood Ul Rehman vs Khazir Mohammad Tunda⁴ , the Hon‟ble Supreme Court while referring to the provisions of Section 190 etc., of Code of

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Criminal Procedure at Para 23 held that „th e steps taken by the Magistrate under Section 190(1)(a) of Cr.P.C followed by Section 204 of Cr.P.C should reflect that

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3 (2019) 20 SCC539

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4 (2015) 12 SCC 420

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the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court.‟

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The Hon‟ble Supreme Court while setting aside the order passed by the High Court confirming the order of the Judicial Magistrate of First Class held that „ though no formal speaking or reasoned orders are required at the stage of Section 190/204 Cr.P.C, there must be sufficient indication of the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of Cr.P.C so as to proceed against the offender.‟

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15. From a reading of the above decisions, it may be noted that in so far as taking of cognizance of an offence by the learned Magistrate under Section 190(1)(b) Cr.P.C i.e., on a police report reasons need not be assigned, whereas for taking cognizance of an offence under Section 190(1)(a) Cr.P.C i.e., on receiving complaint, the Magistrate is required to apply his mind and though a detailed order is not required to be passed, the order should reflect the application of mind with reference to the material on record and contain reasons, though not elaborate.

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16. In the present case, in the considered opinion of this Court, the order of the Magistrate does not reflect application of mind and recording of satisfaction by referring to the material/statements etc., much less reasons for proceeding further in the matter. Therefore, the order under challenge is not sustainable in Law.

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17. Accordingly, the Criminal Petition is allowed. The order dated 08.04.2019 passed by the Learned IV Additional Judicial Magistrate of First Class, Kakinada, East Godavari District, is set aside and the matter is remitted back to the learned Magistrate for passing a reasoned order, in accordance with Law. As a sequel, all pending applications shall stand closed.

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________________________ JUSTICE NINALA JAYASURYA

Date: 20.02.2023

THE HON’BLE SRI JUSTICE NINALA JAYASURYA

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CRIMINAL PETITION NO.3004 of 2019

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Date: 20.02.2023