Dismissed

Atla Chandra Kala v. Atla Emmanuel Reddy

Andhra Pradesh HC21 Mar 2024CRLP/1007/2024

Case brief

AI extract

What is this about?

A de facto complainant filed a criminal petition under Section 482 Cr.P.C. seeking permission to conduct prosecution through a chosen advocate under Section 302 Cr.P.C. The High Court dismissed the petition, holding that the petitioner failed to provide justifiable reasons to displace the Public Prosecutor and attempted to dodge trial proceedings.

What did the court decide?

Petition dismissed; permission to engage private counsel for prosecution not granted.

Atla Chandra Kala Vs Atla Emmanuel Reddy — Criminal Trial and Appeal | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY ,THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL PETITION NO: 1007 OF 2024

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Between:

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Atia Chandra Kala, W/o Atia Emmanuel Reddy, Aged About 33 Years, R/o Mahendranagar 2"^^ Lane, Ongole, Ongole Town, Prakasam District Andhra Pradesh, Pin Code 523001.

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...PetItioner/De Facto Complainant

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AND

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Atia Emmanuel Reddy, S/o Atia Srinivasa Reddy, Aged About 36 Years, R/o Native of Door No. 17-5-51, Rama Mandeer Road, Ayyappa Temple, Pavan School, Chirala, Prakasam District, State of Andhra Pradesh, Pin Code: 523155.

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...Respondent/Accused A1

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Atia Srinivasa Reddy, S/o Atia Bhikshalu Reddy, Aged About 56 Years, R/o Door No. 17-5-51, Rama Mandeer Road, Ayyappa Temple,^Pavan School, Chirala, Prakasam District, State of Andhra Pradesh, Pin Code: 523155.

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...Respondent/Accused A2

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Atia Leelavathi, W/o Atia Srinivasa Reddy, Aged about 51 Years, R/o Door No. 17-5-51. Rama Mandeer Road, Ayyappa Temple, Pavan School, Chirala, Prakasam District, State of Andhra Pradesh Pin Code: 523155.

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...Respondent/Accused A3

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The State of Andhra Pradesh, Represented By Its Public Prosecutor,

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High Court of Andhra Pradesh, Amaravathi.

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...Respondents

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash/set aside the order had passed by the Hon’ble Court of II Additional Judicial Magistrate of First Class Court, At Ongole, Prakasam District order had passed in the CRIMP.NO.4348/2023 in CC.NO.1689/2019 on the date of 12-02-2024 ( One Two Zero Two Two Zero Two Four ) by allowing this present criminal petition and may be pleased to grant a permission to the petitioner/de facto complainant to K.JYOTHI REDDY, ADVOCATE to CONDUCT THE entire prosecution in the Main Calender Case CC.NO.1689/2019 or porsonally till the disposal of the case.

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I-A. NO: 1 OF 9n9d

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant a stay for all further proceedings ini CRLMP.No.4348/2023 in CC.No.1689/2019 on the date of 12-02-2024 ( One Two Zero Two Two Zero Two Four ) till the disposal of the main Criminal Petition.

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^' ■ V

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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 Gouravarapu Venkata Leela Sundaram, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.4 and of Sri. G Suryam Advocate for Respondent Nos. 1 to 3.

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The Court made the following: ORDER

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY, THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT:

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THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY

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CRIMINAL PETITION NO:1007 OF 2024

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Between:

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Atia Chandra Kala, W/o. Atia Emmanuel Reddy, 33 years, R/o.Mahendranagar, 2"'^ lane, Ongole, Ongole Town, Prakasam District, Andhra Pradesh-523001.

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... Petitioner/De facto Complainant

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And

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Atia Emmanuel Reddy, S/o. Atia Srinivasa Reddy, 36 years, R/o. Native of Door No. 17-5-51, Rama Mandeer Road, Ayyappa Temple, Pavan Schpol, Chirala, Prakasam District, Andhra Pradesh-523155. (A1)

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Atia Srinivasa Reddy, S/o. Atia Bhikshalu Reddy, 56 years, R/o. Door No. 17-5-51, Rama Mandeer Road, Ayyappa Temple, Pavan School, Chirala, Prakasam District, Andhra Pradesh-523155. (A2)

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Atia Leelavathi, W/o. Atia Srinivasa Reddy, 51 years, R/o.Door No. 17-5-51, Rama Mandeer Road, Ayyappa Temple, Pavan School, Chirala,, Prakasam District, Andhra Pradesh-523155. (A3)

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

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... Respondents

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The Court made the following:

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ORDER

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This Criminal Petition, under Section 482 Cr.P.C.,^hasbeen filed by the petitioner herein/de facto complainant to quash/setaside the order passed by the II Additional Judicial Magistrate of the First Class, Ongole, Prakasam District in Crl.M.P.No.4348^of 2023 in C.C.No.1689 of 2019, dated 12.02.2024 and permit^the

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petitioner herein/de facto complainant to engage one K.Jyothi Reddy, Advocate to conduct entire prosecution in C.C.No,1689 of 2019 or personally till the disposal of the case. 2. Brief facts of the case are that, marriage of petitioner^and respondent No.1 was solemnized on 12.02.2011 and the^marriage was consummated. Later, the petitioner herein/de facto complainant learnt that respondent No.1 contacted second 26.08.2014 with one Shivananje Gowda Rashmi marriage on without giving divorce to the petitioner herein/de^{factocomplainant,} with the support of A2 and A3. She also learnt that^outoftheir wedlock, they were blessed with one Atla Daniel Reddy on 24.08.2015. 3. The petitioner herein/de facto complainant filed^petitionvide Crl.M.P.No.418 of 2018 under Section 302 CrPC on the^fileofthe 11 Additional Judicial Magistrate of the First Class,^{OngoleinCrime} No.62 of 2017 of Ongole Women PS to engage an Advocate^to conduct prosecution either personally or by a pleader. On 07.05.2018, the learned Magistrate allowed the said petition accordingly as prayed by the petitioner herein/de facto complainant. Aggrieved by the said Order, the respondents^herein preferred Criminal Revision Petition No.40 of 2018^{onthefileofthe} Principal District and Sessions Judge, Ongole, Prakasam^Districtto set-aside the order passed in Crl.M.P.No.418 of 2018, dated 07.05.2018. The Revisional Court allowed the said revision on 30.01.2019 setting aside the above impugned Order to^theextent of giving permission to the petitioner herein/de facto^{complainantto} contest the matter by engaging counsel at that stage,^withaliberty to the petitioner herein/de facto complainant to take^stepsatthe time of further proceedings as per provision of law.

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It is the further contention of petitioner herein/de facto complainant that she filed Crl.M.P.No.4348 of 2023 in CC No.1689 of 2019 at the stage of trial seeking permission to engage K.Jyothi Reddy, Advocate to conduct entire prosecution in C.C.No.1689^of 2019 as per the directions of the order passed by the^Revisional Court in Crl.R.P.No.40 of 2018, dated 30.01.2019. 5. It is the further case of petitioner that while the said petition is pending, the petitioner herein/de facto complainant^{filedCriminal} Petition No.6610 of 2023 before this Court seeking direction to the trial Court for expeditious disposal of C.C.No.1689 of 2019 and also filed Criminal Petition No.8113 of 2023 before this Court with the same prayer sought by her before the trial Court in Crl.M.P.No.4348 of 2023. This Court, on 14.09.2023 disposed the Criminal Petition No.6610 of 2023 directing the trial Court to dispose of C.C.No.1689 of 2019 within a period of four (04) months from the. date of receipt of a copy of that order. Further, this Court on 22.12.2023 closed the Criminal Petition No.8113 of 2023 without prejudice to the right of the petitioner herein/de facto complainant to proceed with the petition filed under^Section302 CrPC and also to approach this Court, as per law, if there is any further cause of action. 6. It is the further contention of petitioner that the II Additional Judicial Magistrate of the First Class, Ongole dismissed the Crl.M.P.No.4348 of 2023 on 12.02.2024 observing that the petitioner did not take any steps for disposal of the case, as the petitioner herein herself approached the High Court to dispose of the case in C.C.No.1689 of 2019 within four (04) months.

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0^.

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It is the contention of the petitioner that she does^nothave interest to contest the C.C.No.1689 of 2019 by the^{AssistantPublic} Prosecutor and she intends to engage one K.Jyothi Reddy, Advocate to conduct entire prosecution in the said case. The petitioner has been suffering from Nerves weakness, viral fever, liver and lungs diseases. Hence, the petitioner filed the present petition to quash the order passed by the II Additional^Judicial Magistrate of the First Class, Ongole in Crl.M.P.No.4348^of2023in C.C.No.1689 of 2019, dated 12.02.2024 and permit the petitioner to engage K.Jyothi Reddy, Advocate to conduct entire prosecution in C.C.No.1689 of 2019.

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Learned Assistant Public Prosecutor for respondent No.4/State would contend that the petitioner herein/de facto complainant can seek transfer of case to another Assistant^Public Prosecutor through proper channel if she is not satisfied^withthe conducting of case by the present Assistant Public^Prosecutor. Hence, requests to dismiss the petition. 9. Heard both sides. 10. The petitioner is the de facto complainant in C.C.No.1689^of 2019. The charge sheet has been filed as against the^accusedfor the offence punishable under Section 498A read with³⁴ I PC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Pending the said case, the petitioner herein/de facto complainant^{filedCriminal} Petition No.6610 of 2023 before this Court seeking^{adirectionfor} expeditious disposal of the CC. This Court, on 14.09.2023^vide Criminal Petition No.6610 of 2023, directed the II Additional Judicial Magistrate of the First Class, Ongole, Prakasam^Districtto dispose of said C.C.No.1689 of 2019 within a period of four (04)

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months from the date of receipt of a copy of that order.^The petitioner herein/de facto complainant has resorted in filing the Crl.M.P.No.4348 of 2023 in C.C.No.1689 of 2019 praying^thetrial Court to grant permission to conduct prosecution through her counsel viz. K.Jyothi Reddy, under Section 302 CrPC.

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By an Order dated 12.02.2024, learned II Additional^Judicial Magistrate of the First Class, Ongole dismissed the said application on the ground that since the petitioner^{herein/defacto} complainant herself approached the High Court of Andhra^Pradesh and obtained direction to dispose of the case within a period of four (04) months from the date of receipt of the order vide^Criminal Petition No.6610 of 2023, which was received by that^Courton 25.10.2023 and since then the petitioner herein/de facto complainant had not taken any steps for disposal of^thecase,the trial Court directed the petitioner herein/de facto complainant to cooperate with the prosecution agency to dispose of^thecase within time fixed by this Court, without fail. While^{thematterstood} thus, filing the present application to engage counsel^ofherchoice for prosecuting the case and dodging with the proceedings^would go to show the attitude of the petitioner herein/de facto complainant.

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Learned counsel appearing on behalf of petitioner herein/de facto complainant submits that under Section 302 CrPC the petitioner herein/de facto complainant herself intends to prosecute her case through her counsel viz. K.Jyothi Reddy, without involvement of prosecution. 13. It is pertinent to refer Section 302 CrPC which read as under:

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Section 302 CrPC: Permission to conduct prosecution:

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Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer beiow the rank of Inspector; but no person,^otherthanthe Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to^dosowithout such permission;

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Provided that no police officer shall be permitted^toconduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. 2. Any person conducting the prosecution may do so personally or by a pleader.

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Learned counsel for the petitioner contends that the Magistrate may permit the prosecution to be conducted by the person other than a Police Officer below the rank of Inspector, but other persons than the Advocate General or Government^Advocate or Public Prosecutor or Assistant Public Prosecutor, require permission to do so.

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A plain reading of the above said provision goes to^showthat the petitioner is entitled to avail the permission of his/her case being conducted by any person other than the persons afore mentioned.

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It is pertinent to mention herein that it is essential^that in order to obtain such permission, the petitioner has^tostateasto what are the reasons as to why the Assistant Public Prosecutor, who is appearing on his/her behalf is not fit to conduct the prosecution case. In such circumstances only, the Magistrate may permit the petitioner to have avail the benefit of a private Advocate of his/her choice.

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In the present case on hand, this Court has perused the affidavit filed by the petitioner herein/c/e facto complainant, wherein it shows that the she stated that she is the de facto complainant in Calendar Case No.1689 of 2019. It is further stated that she filed the affidavit before the Court for grant of permission^toconductthe . prosecution in her case by one K.Jyothi Reddy. The^{affidavitofthe} petitioner herein/c/e facto complainant, absolutely^{doesnotcontain} any allegations casting against the Assistant Public^Prosecutor therein. Nothing was stated with regard to the said^fact.

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Learned counsel for the petitioner has relied upon a Judgment in Dilnashin Shaikh Vs. State of Maharashtra^ wherein, the said Court allowed the application filed by the petitioner therein under Section 302 CrPC and permission was granted to the petitioner therein to appoint an Advocate of her choice to conduct the prosecution case.

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Learned Special Public Prosecutor appearing on^behalfof the respondent No.4/State would submit that the petitioner^herein was dodging with the trial by filing petitions on one pretext or the other. He relied upon the precedent in Amir Hamza Shaikh^and others Vs. State of Maharashtra and another^ wherein, the Hon’ble Apex Court has categorically stated at paragraph No. 15, which read as under:

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“15. In view of such principles laid down, we find that though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the court in a trial^before the Magistrate. The Magistrate may consider as to whether^thevictimis in a position to assist the court and as to whether^{thetrialdoesnot} involve such complexities which cannot be handled by^the victim.

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^ Criminal Writ Petition No.4939 of 2018, dated 27.11.2018. ^ (2019) 8 Supreme Court Cases 387.

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On satisfaction of such facts, the Magistrate would be within his jurisdiction to grant permission to the victim to take over the inquiry of the pendency before the Magistrate.

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behalf of 20. Learned Special Public Prosecutor appearing on the respondent No.4/ State would contend that the said application merely being asked by the victim to cannot be entertained on is entitled to appoint counsel of his/her choice. The victim is engage assist the Court in trial before the an Advocate of his/her choice to ion under Section 301 CrPC. But. in Magistrate as per the provision concerned, it is essential that connection with Section 302 CrPC is reasons have to be assigned by the victim as to why he/she is not Public Prosecutor and police in reposing confidence on the conducting the prosecution case. affidavit filed by the petitioner herein/ 21. A plain reading of the show that except stating that she de facto complainant, it goes to wants to appoint coun^i yiz. K.Jyothi Reddy, Advocate, to conduct reasons are given by the absolutely no her prosecution case in order to allow the present petitioner herein/de facto complainant in petition.

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The trial has also commenced and as many as two (02) examined by the trial Court. Learned trial witnesses have been come to a conclusion Court is the appropriate Court where it can to assist the court and whether whether the victim is in a position such complexities which cannot be the trial does not involve handled by the victim. The Magistrate Court ISi the appropriate conclusion whether the victim is able to Court to arrive at such handle the same or not.

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The learned Magistrate has categorically stated that the petitioner did not give any justifiable reasons or grounds so as to engage an Advocate of her choice. More so, the trial has commenced and two (02) witnesses were examined, and the trial Court came to such conclusion and further observed that the petitioner is not taking steps for disposal of the case early and these are the tactics being adopted by the petitioner herein/de facto complainant in order to dodge with the proceedings.^Inview of the said reasons, since there are no justifiable reasons given by the petitioner herein/de facto complainant in order to entertain the application filed by the petitioner herein/de facto complainant, I see no grounds to entertain the application. The petition is deserves to be dismissed.

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