Research › Search › Judgment

Andhra High Court · body

2000 DIGILAW 41 (AP)

Gandrothu Pattabhi v. State Of A. P.

2000-01-25

VAMAN RAO

body2000
VAMAN RAO, J. ( 1 ) HEARD both sides. ( 2 ) THIS petition under Section 482 of cr. P. C. seeks quashing of proceedings against the petitioners in respect of offence under Section 354 of IPC. ( 3 ) IT appears on the basis of complaint by one Gogulamma, a First Information Report was recorded at Police Station, Angara, East godavari District in Crime No. 25 of 1998. After investigation,the said police filed a charge-sheet against the petitioners for offences under Section 324 IPC read with section 149 of IPC. However, on a perusal of the First Information Report given by the de facto complainant and the statements of witnesses recorded under Section 161 of cr. P. C. , the learned Judicial First Class magistrate, Alamuru found that the offence made out includes an offence under section 354 of IPC also. The learned Counsel for the petitioner challenges this and contends that the learned Magistrate acted irregularly. The contention is that in the absence of any fresh material, the learned magistrate ought not to have taken cognizance of the offence under Section 354 of IPC against the accused. ( 4 ) THE learned Public Prosecutor, however, contends that the learned magistrate has passed the impugned order taking cognizance of the offence under section 354 of IPC on the material available on record. ( 5 ) UNDER Section 209 of Cr. P. C, the magistrate is required to commit the case against the accused to the Court of Sessions if he on examination of the material finds that the offence is triable exclusively by the court of Sessions. ( 6 ) IT is apparent that while performing this duty enjoined on the Magistrate under section 209 of Cr. P. C. he is not bound by the views of the investigating agency as to what offence has been constituted and accordingly he is not bound by the offences mentioned in the charge-sheet. The law enjoins on him to ascertain whether an offence in question is triable exclusively by the Court of Sessions on the basis of facts and circumstances brought-forth during investigation and available before the Court. In that view of the matter, the learned magistrate in this case on a consideration of the complaint given by the de facto complainant and the statements of the witnesses recorded under Section 161 of cr. In that view of the matter, the learned magistrate in this case on a consideration of the complaint given by the de facto complainant and the statements of the witnesses recorded under Section 161 of cr. P. C. found that an offence under section 354 of IPC is prima facie made out which is triable exclusively by the Court of sessions. ( 7 ) UNDER these circumstances, no irregularity can be ascribed to the order passed by the learned Magistrate in this regard on 22-3-1999 which is sought to be impugned. In this view of the matter, this petition for quashing the proceedings in respect of offence under Section 354 IPC deserves to be dismissed. ( 8 ) IT is, however, pointed out by the learned Counsel for the petitioners that on that particular date on which the learned magistrate passed this order, the accused happend to be absent and a petition for dispensing with their personal attendance was filed by the Advocate. While dismissing that petition, the learned Magistrate in view of the fact that the case is exclusively triable by the Court of Sessions cancelled the bail earlier granted to the accused and directed issue of Non-bailable warrants to the petitioners-accused. The contention of the learned Counsel for the petitioner is that the petitioners did not anticipate such an order from the Court and they had no opportunity to approach the Court of Sessions for obtaining bail. The learned Counsel contends that inasmuch as the petitioners were already on bail, cancellation of their bail is not justified. ( 9 ) THE learned Magistrate cancelled the bail on the ground that one of the offences that is made out falls under Section 354 of ipc which is triable exclusively by the Court of Sessions. This action on the part of the learned Magistrate cannot be considered as without jurisdiction or in any way irregular or contrary to any provisions of the Criminal procedure Code. This action on the part of the learned Magistrate cannot be considered as without jurisdiction or in any way irregular or contrary to any provisions of the Criminal procedure Code. ( 10 ) HOWEVER, as submitted by the learned counsel for the petitioner in view of the fact that the petitioners seems to have encountered with an unanticipated action on the part of the Magistrate, the non- bailable warrants said to have been issued by the learned Magistrate shall not be executed during a period of 10 days from today, during which period, it is open to the petitioners to approach the Court of Sessions for moving an application for bail. Obviously, if the bail is granted, the NBWs issued by the learned Magistrate shall be deemed to have been cancelled. ( 11 ) WITH the above directions, this petition dismissed.