Quashed

Hari Sreedhar v. The State of Telangana and 4 others

Telangana HC23 Feb 2023CRLP/8810/2021

Case brief

AI extract

What is this about?

Common order disposing two criminal petitions under Section 482 CrPC seeking quashal and stay. Court set aside docket orders for lack of cogent reasons for contriving offences, citing Supreme Court precedent requiring application of mind before cognition.

What did the court decide?

Docket orders dated 30.03.2021 and 31.03.2021 passed by respective Magistrates were set aside, allowing opportunity to take cognition with reasons.

Hari Sreedhar Vs The State of Telangana and… — Civil Procedure and Limitation | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY ,THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL PETITION Nos.8810 0F 2021 an d20 oF 2022

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CRL.P.No.8 I 10 0F 2021: Between:

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Hari Sreedhar, S/o. Hari Subba Rao, aged 53 years, occ. Advocate, plot No. 210, B-Block, Kavuri Hills, Hyderabad-35

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...PETITIONERYPETITON ER

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AND

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The State of rerangana, Rep. by-pubric prosecutor, High court at Hyderabad, through Raidurg^porice station,^-Gachibowri, cyberaba<i', rerangana bia-iJ.""

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Motrd.Afzal, S/o. Mohd.Habib, {Oed 50 years, occ. business, Rl/o. H.No.i9_4_ 28OtBt11St43, Madina Cotony, tiOOunO. aihidurpura, nyOdraOiO.^'-'-

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Chand Sultana, Wo. Mohd.Amjad, Aged about 63 years, Occ. House Hold.

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Mohd.Amjad, Aged about 65 years.

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Respondents 3 and 4 are residents of H.No.10-2-3g5/Nl, Vijayanagar corony, Hyderabad.

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Sumitra, Wo. Rama, Murthy, Aged 51 years, Rl/o.Khambampadu, Vatsavai ' Mandal, Krishna District.

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(Respondehts g to 5 are only profarma parties to this petition)

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...RESPONDENTS/RESPONDENTS

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Petition under section 4g2 of cr.p.c praying that in the circumstances stated in the Memorandum of Grounds of criminar petition, the High court may be pleased to quash the proceedings in cc No.'r I 1 6 or 2021 pending on the fire of the XVI Additionar Metropolitan Magistrate court, cyberabad at Rajendranagar against the petitioner.

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l.A. NO: 1 OF 2021

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Petition unde S;eclron 482 of Cr.P.C praying thal in 11e circumstances stated ir the [Vemor rrdum of Grounds of Criminal Petition. :lr,: High Court may be pleased to grant st,ay of all further^proceedings including :: ppearance of the petitionr:r in CC No. 116 o'( 2021 on the f ile of the XVI Ad(Lition.rl Metropolitan [\rlagistrate Court, Cy reracad at Rajendranagar, Ranga Redd1,t.)istrict.

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CRlMll{AL PETITIfN NO: 20 OF 2022

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Betweerr:

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Hari Sreedhar, Silo. Hari Subba Rao, aged 53 years. Occ.^r\dv:cate, Plot No 210, B-BIock,K rvrri Hills, Hyderabad-33

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...PETITI C NEFI/PETITIONER

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AND

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Tre Slate of Tr langana, Rep.by Public Prosecutor, High O,::rt r:t Hyderabad, T rrough Kalap rlhar Police Station, Hyderabad.

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Ir/ohd. Afzal @ S;F Rahman, S/o. tVohd.Habeeb. Aged 50^yr, ars, Occ.Business, l/o.H.No.19-4-280181115143, Madina Colorl,, Terdbund, B ahadurpura, I yderabad

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Mohammed Mr l^zrboob Ali, S/o. Not known to the Petitiono' Aged about 50 yr:ars, Occ.Bus nerss, Rl/o.Yakutpura, Hyderabad.

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Mohd.Naushac Ali, S/o. Mohd.lsmail Ali, Aged 48 years, C tr:r;. Business, R'o.Narayanag rda. Hyderabad.

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Mohd. Abdul M 1eed, S/o.Late Iv1.A.Waheed, Aged 45 years O<;c. Business. R'o.Nawabsah b kunta, Charminar, Hyderabad.

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C rand Sultana D/o.Late Mohd.Abdul Qader, Wo. Mohd lrrr.^jad, Aged 63 ye:ars, Occ.Hor. ;ehold, R/o.H.No.10-2-385/A/1 , Vijay Nagirr 3olrtny, H'lderabad.

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Mchd Amlad, A yed 68 years, Occ. retd employee, R/o. H.lrl<: .10-2-385/N1, Vijay Nagar Co rny, Hyderabad.

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Sumitra, W/o.R rma Murthy, Aged about 51 years, R/o.Karnl:'harnpadu Village, Vatsavai Mand, l, Krishna District.

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(Respondent I os.3 to 8 are only Profarma Parties to this petition)

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...RESPONDEN"]'S/RESPONDENTS

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Petition under Sit-.clion 1482 of Cr.P.C praying that in,ire r;ircumstances stated in the fvlemora dum of Grounds of Criminal Petition, the lligh Court may be pleased lo quash the rroceedings in CC No. 95 of 202'1 pendirrgr on the file of the

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special Judicial First class^{Magistrate court for Excise cases,Hyderabad against} the^petitioner.

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l.A. NO: 1 OF 2022

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Petition under Section 482 of CI.P.C^{praying that in the circumstances} stated in the Memorandum^{of Grounds of Criminal Petition,the HighCourt may be} pleased to grant stay of all further^proceedings including appearance of^the petitioner in CC No. 95 ol 2021 on the file of the Special Judicial^First Class Magistrate Court for Excise Cases,^Hyderabad.

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These Petitions coming on for hearing, upon^{perusingthe Memorandum of} Grounds of Criminal Petition^{and upon hearingthe argumentsof Sri Dasi} Ramesh, Advocate for the Petitioners^{in both Criminal Petitions and the Public} Prosecutor^(TG) on behalf of the^{Respondent No.1in both Criminal Petitions and} of Sri C. Ram Prasad,^{Advocatefor the RespondentNo.2 in both Criminal} Petitions.

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The Court made the following:^{COMMON ORDER}

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THE {ONOURABLE SRI ]USTICE K.SUREI'IT'ER

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CRIMINAI PETITION Nos.881O OF 2021 AND::0 Ot 2022 (:oMMON Ot ''qEB: (:RIMI NAL F ETITION No.8810 OF 2021

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This Cr rrinal Petition is filed under Section 482 tl' the Code of Criminal Proc rlure, 1973 (for short 'Cr.P.C.') by tlre, prtitionerIccused No.1 to quash the proceedings against him ir^(:.C.No.1116 of 2021 per crng on the file of XVI Additional l'letropolitan Nlagistrate, C,oerabad at Rajendranagar, filed for tl'e tffences punishable un ler liections 420, 417, 478, 423, 464, 43i;, 4rt9, 469, 477, 193,20,, 209, 120-4 and 506 read with 34 of .'rdian Penal Code.

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CRIMINAL P :TITION No.2 o oF 2022

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This Cri rinal Petition is filed under Section 482 cf lhe Code of C'iminal Procr dure, 1973 (for short 'Cr.P.C.') by ther petitionerA,:cused No.5 o quash the proceedings against him in C C.ltlo.95 of 2021 pending on the file of Special Judicial First Cla:;:; Magistrate Court for Excis : Cases, Hyderabad, filed for the offencer:; punishable under Sectionr 420, 417,418, 423, 464,465,468,4e9, 4lL, 193, 2(\7,209,120- \ and 506 read with 34 of Indian Penal Ccrle.

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As the petitioner and 2nd respondent^- de^{facto complainantin} both the criminal^petitions is one and the same, both the^criminal petitions are heard together and disposed of by way of this common order.

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Heard learned counsel for the^petitioner and learned Additional Public Prosecutor for the respondent - State. Perused the record.

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The 2nd respondent^: de facto complainant filed complaints. The said complaints were investigated by the police and the^police filed a report stating that the cases are "civil in nature". On protest applications made by the 2nd respondent, the learned Magistrate^has taken cognizance of the offences.

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In Criminal Petition No.8810 of 2021, the docket order dated 30.03.2021 in C.C.No.1116 of 202I^passed by the )0/I Additional Metropolitan Magistrate, Cyberabad at Rajendranagar, reads as follows:

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" This is a protest petition filed against the final report dated 03.01.2019 filed by the investigation officer^PS Raidurgam in Crime No.736120L7. Perused the sworn statement of complainant (GPA holder of complainant's 1 to 4), this sworn statement of witness No.l Fahimeda

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Begum, rryitness No.2 Nazeerul Quadri Sajid, wi1 rt:rss No.3 tvl0hd.^r ousr: Khan. They disclosed a^prinra fac e case for the off ,n,:e U/S. 420, 468, 471, l20B r/ur l1 of IPC against the respondent Nos.2 to 5. Hence, r:s;porrdent Nos.2 t 5i i.e., Hari Sridhar, Smt. Chand Sulthar;,, Ivlohd. Amjad, Smt. Sun'itra Wo. Rama Murthy are ;rrrayed as accusec No.l to 4. Taken on file as C.C.No.111rr/,1021 for the offt rce U/S. 420, 468, 471, 1208 rlw 34 11,1. against accusec No.1 to 4. Issue summons to accused Nl:r. 1 to 4. Call on tB 07.2021 on payment of process fee."

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In Crin nal Petition No.20 of 2022, the dockrt orcer dated 31.03.2021 i C..C.No.95 of 2OZl^passed by the Specirl lucicial First Slass Magisl^.ate Court for Excise Cases, Hyderat,arl, reads as

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bllows:

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" Hearr . Perused the record. Prima facie case is appearir !l^{from the protest evidence lead by the delacto} compla i ants (GPA). Hence, case is taken on filr-. ag,linst A2 to At for the offence Uls. 420,465, 468, 471 riw 1i4 of IPC. Is ;ue summons to 42 to AB on process. Call on 30,04.21 2'r ."

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l;. Prime zcie, the orders of the learned Magistratr: (rre contrary, irs law laid⁽ lwn by the Hon'ble Supreme Court in Sunil Bharti ,t4itthal Us. :entral Bureau of Investigationl in Crirninal Appeal trlos.34 to 3 ,rf 2015 dated 09.01.2015, wherein it is held as

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lollows:

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'12{)l5l^{4 Supr.-n, ( ,)uCases fi09}

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"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if^proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a^police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue^process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the couft remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."

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Further, in the Judgment of Fakruddin Ahmad Vs State of llttaranchal and anothef in Crl.A.No.1408 of 2028 dated 05.09.2008, it is held that

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"Nevertheless before a Magistrate can be said to have taken cognizance of an offente, it is imperative that he must have taken notice of accusations and applied his mind to allegations made in complaint or in police report or information received from a source other than a police report, as the case may be, an material filed therewith - It is only when the Magistrate applies his mind and is satisfied that allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence."

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The issuance of process in a criminal case is a serious issue

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and the Court taking cognizance cannot order summoning of the

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'? 1zoos1^{tz SupremeCourr Cases 15?}

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accused to f r:e^(-riminal trial without giving any reasc r s. The order taking cogni ance though not required to be elaborat€r shculd reflect that the [v'la( strate had applied his mind to the facts c,l'thr: case and had taken cc anizance of the offerrce.

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As ser n from the cognizance orders, the learrr,::d lvlagistrate has not rel r.red to any of the facts what convircecl to take cognizance c ' the offences alleged and there is total r(.,n-€ pplication of the mind I y the learned Magistrate while takrng co;rizance of the complaint an I issuing process to the accused to face r:r irninal trial

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For th r sard reason, the docket order dated :r0.03.2021 in 1.C.No.1116 <tl 11027 passed by the XVI Additionrrl Metropolitan \4agistrate, -yberabad at^{Rajendranagar,} in Crin nal^petition i,lo.BB10 of .102L and the docket order dated 31.03.2021 in (-^.C.No.95 o 2021 passed by the Special Judicial First Class lvlagistrate Cr urt for Excise Cases, Hyderabad, in Crin-tinal Petition I'1o.20 of 202 l, are hereby set aside. However, this order will not preclude the erarned Magistrate from taking cognizanc(: against the accused by gi ,ing appropriate reasons.

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.f!-

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11 Accordingly, both the Criminal Petitions are disposed of.

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Miscellaneous applications^pending, if any, shall stand^closed.

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Sd/.N.SRIHARI ASSISTANT REGISTRAR //TRUE COPY// Qo

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SECTION OFFICER

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