Allowed

Dr. a. Damodhar Reddy, v. Mohd. Jabir Ahmed

Telangana HC21 Sept 2012CRLP/1172/2010

Case brief

AI extract

What is this about?

The Single Judge quashed criminal proceedings against the petitioner under Section 153-A IPC, holding that there was an abuse of process of the court due to retaliatory intent evidenced by delay in filing the complainant's report and prior police action against the complainant's son for assault.

What did the court decide?

Criminal Petition allowed; proceedings in C.C.No.29 of 2010 against the accused quashed.

Dr. a. Damodhar Reddy, Vs Mohd. Jabir Ahmed — Quashing and FIR | Telangana HC (2012)

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HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.No.1172 of 2010

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ORDER:

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This petition is filed under Section 482 Cr.P.C to quash proceedings in C.C.No.29 of 2010 on the file of the Court of Judicial Magistrate of First Class, Bhainsa, Adilabad District registered for offence punishable under Section 153-A IPC.

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2. The petitioner is the accused and the first respondent is the complainant in the calendar case. For the sake of convenience, I refer the parties as arrayed in the calendar case.

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3. It is necessary to briefly note the facts of the case as pleaded for proper appreciation of the matter.

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A report was given to the Divisional Superintendent of Police, Bhainsa by the complainant pleading or alleging as follows. He is the resident of Bhainsa Town, Ex. Municipal Chairman and District M.I.M. President. During 26.8.2009 to 9.9.2009, he was out of country as he went to Mecca for Umra prayer and returned back to India on 9.9.2009. After returning home, he came to know through some of his well-wishers that the accused along with Hindu Vahini activists who involved in many Hindu activities being the President of Sishu Mandir, promoter of Hindu Vahini and Bajrang Dal, all Hindu Organisations during Ganesh Visarjan procession at Panjeshah Chowk and knowing fully well about the sensitivity of that area along with others sung a song loudly i.e. EE OORU MANADIRA, BHAINSA MANADIRA, BHAINSA POLICE MANADIRA, BHAINSA CI MANAUDU RA, which would incite ill-feelings between Hindu and Muslim communities. Further because of the incitement, the feelings of the muslim minorities have been very much affected and they have been living under fear and terror from the activists of Hindu Vahini. It is also according to him that the accused in fact did so in order to create tension between the two groups of people and because of that there was law and order problem in Bhainsa town. On that, a case in

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Cr.No.130 of 2009 was registered under Section 153-A IPC on the file of Bhainsa Police Station.

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4. However, after conducting necessary enquiry, the police filed final report under Section 173 Cr.P.C. treating the case as ‘mistake of fact’. Aggrieved by that, the complainant filed protest petition before the Court below, in consequence of which, that Court recorded sworn statements of the complainant, one Mohd. Imtiazulhaq, one Mohd. Abdul Sattar, one Shaik Rahamath, one Mohd. Amer Ahmed and one Mohd. Abdul Hafeez. On the basis of the statements of those persons, the Court took cognizance of the matter and registered it as C.C.No.29 of 2010.

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5. According to the defence the defacto complainant’s son along with many others involved in assaulting the accused and damaging the furniture in his Nursing Home and also the medical shop attached to the Nursing Home by reason of which a report was given and the case was registered in the police station against them and as a counterblast only this case was foisted. In fact as borne out by record, the accused gave a report dated 02-09-2009 to the police as follows:

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“He is a Private Medical Practitioner and running Nursing Home on the name of Krishna Nursing Home at Bhainsa. Today i.e. on 21.9.2009 at 8.30 p.m. some people came to his Nursing Home for treatment and one of them a middle aged patient by name Sk.Shabbir Ahmed complaining about severe chest pain and immediately he attended the patient and found he suffered severe my cordial infaction. He took the E.C.G. and advised the relatives to shift immediately the patient to higher medical centre. Meanwhile, the patient suffered another attack and died. On hearing about this, suddenly the relatives of the deceased and their community people gathered in a mob of 400-500 persons. They started abusing him with filthy language and physically assaulted him and another Dr.Mahipal who happened to be present at that time in his Nursing Home. Meanwhile, few persons damaged furniture of Nursing Home and damaged his Car. They also damaged the Medical shop attached to his Nursing Home. It seemed that the mob came preplanned with sticks and an intention to hurt and kill him and damage his Nursing Home, His Nursing Home staff and Dr.M.Mahipal and well-wishers saved him from the clutches of the mob. The mob was led by MIM party leader Md.Faizullakhan (A1), Aamir S/o Jabir Ahmed (A2), Imtiyaz (A3), Asarar (A4) and Imran S/o Sabir (A5) and many others and he requested to take necessary action into the

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matter”.

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6. On the basis of the report, in fact the Station House Officer of the Police Station registered the case in Crime No.129 of 2009 under Sections 147, 148, 427, 448, 355, 452, 294(b), 506 read with Section 149 IPC and Section 4 of Prevention of Violence and Damage of Property Act, 2007. The Inspector of Police, Bhainsa Rulral Police Station conducted necessary investigation of the case and arrested the accused concerned therein numbering (31) and sent them to the Court for judicial remand. In fact, the Inspector of Police, on the basis of investigation done, came to the conclusion that the case was made out against A1 to A-3 for the alleged offences.

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7. Leaned counsel for the accused would contend as follows. The complainant gave a false report to the police in retaliation for the purpose of pressurizing the accused to withdraw the complaint filed by him against his son. In fact, admittedly the complainant was not in India at the relevant point of time as he had gone to Mecca and returned to India only on 09-09-2009. He claims that the witnesses examined on behalf of the complainant before the Court belong to Muslim minority community and hence they are interested witnesses, but the Court below without considering all the relevant circumstances just basing upon the sworn statements recorded, delivered the order (docket order) directing the registration of calendar case, which therefore is not tenable. According to him, even taking the allegations to be true and correct, no prima facie case is made out under Section 153-A IPC against the accused. He has drawn the attention of this Court to the fact that whereas the alleged incident is said to have taken place on 31-08-2009 the complainant gave his report to the police on 25-09-2009 i.e., after a delay of 25 days and also after the accused gave his report to the police on 02-09-2009 only which in fact proves prima facie that only in retaliation to the report given by the accused, the complaint was filed. Further he contends that by virtue of Section

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196 Cr.P.C., no Court shall take cognizance of an offence punishable under Section 153-A IPC except with the previous sanction of the Central Government or State Government as the case may be, but no such sanction was taken in this case. Therefore, he seeks for quashing the proceedings.

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8. On the other hand, learned counsel for the complainant has contended that the learned Magistrate, having gone through the material available, came to the conclusion that prima facie case was made out to prosecute the accused for the offence punishable under Section 153-A IPC observing necessary formalities by reason of which the question of genuineness or sufficiency or insufficiency of the reasons given by the learned Magistrate cannot be gone into now whereas at the most it can be seen as to whether sufficient material was placed before the learned Magistrate to come to the conclusion that necessary grounds were made out for issuing necessary process. It is further contended that no doubt necessary sanction should be obtained under Section 196 Cr.P.C. for prosecuting the accused for the alleged offence but that could be done after even adducing necessary evidence also by reason of which the proceedings cannot be quashed at this stage. Ultimately he contends that as there is prima facie case to the effect that the accused involved in the promotion of ill-feelings between the two Communities, the petition should be dismissed.

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9. As laid down in ZANDU PHARMACEUTICAL WORKS LTD [1] v. MOHD. SHARAFUL HAQUE , “It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the

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question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

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10. Further in INDER MOHAN GOSWAMI v. STATE OF UTTARANCHAL^[2] , a Full Bench of the Supreme Court similarly observed, while considering Section 482 Cr.P.C. “Inherent powers under section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court.”

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11. Therefore it is to be seen as to whether the initiation and continuation of the proceedings are nothing but abuse of process of law and hence are to be quashed.

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12. What is significant is that though the alleged incident is said to have taken place on 31-08-2009, the complainant gave the report to the police on 25-09-2009 i.e., 25 days later to the alleged incident and 23 days after the accused gave his report to the police. No acceptable explanation is given about the delay so caused. Significantly final report was filed by the police treating the report given by the defacto complainant as false, whereas in consequence of that, he filed the complaint before the Court below which had taken cognizance of the matter. Apart from that going through the allegations made it is difficult to say prima facie that those words were uttered with a view to promote ill-feelings or enmity and hurt the feelings of Muslims even supposing that those words were really uttered. These circumstances are sufficient to hold prima facie that at the outset the defacto complainant got no intention to give any report to the police, whereas only after the accused gave his report to the police, he entertained the idea of giving his report to the police as a counterblast to the report given by the accused to the police. While considering the

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question of abuse of process of law, all the relevant circumstances in particular the circumstance that the police registered the case against the son of the defacto complainant and others on the report given by the accused for attacking his Nursing Home and causing damage to his furniture in his Nursing Home and also causing injuries to him are to be taken into consideration. These circumstances really infer that there has been abuse of process of law whereby the inherent powers of this Court under Section 482 Cr.P.C. can be invoked.

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13. I n NUPUR TALWAR v. CENTRAL BUREAU OF INVESTIGATION^[3] , the Supreme Court considered the ambit of Section 204 Cr.P.C. which includes the question of taking cognizance of a criminal case when sufficient material is there to prosecute a person in respect of a criminal charge. In that case it is held that while issuing process, necessary reasons need not be given by the Judicial Magistrate of First Class and the Court before which that aspect is raised cannot go into the question as to whether the reasons given by the Magistrate in doing so are good or bad, or sufficient or insufficient, whereas it is only to be seen as to whether sufficient material is there before the learned Magistrate to take a view that there is sufficient ground for issuing the process. But this proposition is definitely subject to the question of abuse of process of law if there is any.

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14. With regards to the question of getting sanction under Section 196 Cr.P.C. from the Government to proceed further in the [4] matter, in DHARMESH v. STATE OF GUJARAT , committal Magistrate took cognizance of offences punishable under Sections 120-B, 121, 121-A, 122, 123 and 212 IPC and Sections 25(1)(A) and (B) and 27 of the Arms Act against the accused concerned therein and committed the case to the concerned Court of Sessions because the case was to be tried exclusively by the Sessions Court, whereas subsequently necessary sanction was obtained from the Government for prosecuting the accused. A question was raised about the validity

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of the committal order for not obtaining necessary sanction from the Government while doing so. It was held by the Supreme Court “Even assumed that the petitioner is right in his contention as to send the matter back to the Magistrate to go through a fresh process of committal after receiving the sanction order filed by the prosecution, in any case the matter would have to come up before the Sessions Court again, hence there is no need to insist upon completing those formalities.”

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15. In BAKHSHISH SINGH BRAR v. SMT. GURMEJ

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KAUR^[5] , the accused concerned therein was charged for offences punishable under Sections 302, 323 and 149 IPC, and the Sessions Court concerned held that it could decide the necessity of sanction after gathering necessary material and evidence.

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It was held by the Supreme Court that the order was quite legal. This view is similar to the view taken by the Supreme Court in DHARMESH’s case (4 supra).

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16. In STATE v. SAMAR DUTTA^[6] , a Full Bench of Calcutta High Court held under similar circumstances “The question of obtaining sanction can be looked into by the trial Court concerned with and the trial of the case can be permitted if no prejudice is caused to the accused persons.”

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17. Section 196 Cr.P.C. provides to the extent it is relevant that no Court shall take cognizance of any offences punishable under Chapter-VI or Section 153-A IPC, except with the previous sanction of the Central Government or State Government as the case may be.

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18. Therefore what emerges from the observations made by the Supreme Court is that obtaining necessary sanction to prosecute a person for the offence covered by Section 153-A IPC is mandatory, but however that can be done even after adducing necessary material or evidence but before finally concluding the corresponding criminal case.

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19. However, ultimately as the question of prosecuting the accused for the alleged offence is found to be nothing but abuse of process of law, the proceedings are to be quashed.

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20. In the result, the Criminal Petition is allowed quashing the proceedings against the accused in C.C.No.29 of 2010 on the file of the Court of Judicial Magistrate of First Class, Bhainsa, Adilabad District.

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_________________________ G. KRISHNA MOHAN REDDY, J

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Date: 21-09-2012 YCR

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[1] (2005) 1 SCC 122 [2] (2007) 12 SCC 1 [3] AIR 2012 SC 1921

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[4] (2002) 6 SCC 370 [5] AIR 1988 SC 257

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[6] 2005(1) All India Criminal Law Reporter 55

Dr. a. Damodhar Reddy, v. Mohd. Jabir Ahmed

Case brief

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Dr. a. Damodhar Reddy, v. Mohd. Jabir Ahmed

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