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2001 DIGILAW 1328 (AP)

G. VENKATARATNAM KUMAR v. State Of A. P.

2001-10-19

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) THE petitioner herein seeks to quash the proceedings initiated against him in sessions Case No. 374 of 1998 on the file of the II Additional Metropolitan sessions Judge, Hyderabad. ( 2 ) THE petitioner is A. 10 in the crime. The respondent-State charge sheeted as many as 11 accused in the Court of III Metropolitan magistrate, Hyderabad City, for the alleged offences punishable under Sections 147,148, 452, 436, 324 read with Section 149 of the indian Penal Code and under Sections 25 (lxa) and 27 of the Indian Arms Act. It was shown in the charge sheet that the accused Nos. 8, 9, 10 and 11 were absconding. Initially while issuing process to the accused for their appearance before the Court, non-bailable warrant was ordered to be issued against the petitioner herein while taking charge sheet on file as PRC no. 13 of 1995. Since the warrant could not be executed, the case against the petitioner was separated. Initially the case against A2, a3, and All was separated and was committed to the Court of Session. The sessions Court after having taken cognizance of the same in S. C. No, 111 of 1996 conducted trial and that ended in acquittal. Later, the case against A. 1, A. 4 and A. 10 was registered as PRC No. 3 of 1996. That too was committed to the Court of Session and the sessions Court in S. C,no. 202 of 1998 after having conducted trial acquitted A. 1 and a. 4 and convicted A. 10. The case against the petitioner remained on the file of the III metropolitan Magistrate, Hyderabad, as PRC no. 22 of 1997. ( 3 ) THE petitioner herein surrendered before the Court and the case against him too was committed to the Court of Session in S. C. No. 374 of 1998, which is pending on the file of the II Additional Metropolitan sessions Judge, Hyderabad. 22 of 1997. ( 3 ) THE petitioner herein surrendered before the Court and the case against him too was committed to the Court of Session in S. C. No. 374 of 1998, which is pending on the file of the II Additional Metropolitan sessions Judge, Hyderabad. The petitioner now seeks to quash the proceedings on the premise that according to the averments made in the charge sheet, there were only three eye-witnesses to the occurrence and that all the three eye-witnesses during the course of trial in S. C. No. lll of 1996 deposed that they did not know who the assailants were and none of them mentioned the name of the petitioner herein even in their previous statements and that the only allegation against the petitioner was the inadmissible confession of the co-accused who had already been acquitted by the sessions Court. It is thus obvious that the petitioner seeks to quash the proceedings in s. C. No. 374 of 1998 on the file of the ii Additional Metropolitan Sessions Judge, hyderabad, on the ground that there was no legal evidence against him and, therefore, there is no point in allowing the proceeding to continue, which is nothing but an abuse of the process of the Court, particularly in view of the acquittal of the other accused in the case. ( 4 ) THE Police after conducting investigation laid the charge sheet against the petitioner also as aforesaid, which discloses prima facie case against the petitioner. There has been no legal bar as such to maintain the case against the petitioner before that Court, The sufficiency or otherwise of the evidence against the accused-petitioner to warrant a conviction at the time of the trial is not germane for consideration at this stage to quash the proceedings. Similarly, the fact that the split up cases against the other accused in this case ended in acquittal cannot be the sole ground for throwing away the case against the petitioner without there being any trial by invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Even the ground that the eye-witnesses have not stated the name of the petitioner herein in their previous statements while implicating the other accused equally cannot be a valid ground for quashing the proceedings against the petitioner. Even the ground that the eye-witnesses have not stated the name of the petitioner herein in their previous statements while implicating the other accused equally cannot be a valid ground for quashing the proceedings against the petitioner. If the eye-witnesses speak the name of the petitioner tomorrow at the time of the trial, their omission to mention the name of the petitioner in their previous statements becomes a matter of appreciation by the Court below. But, from that it cannot be concluded that there is no case against the petitioner. ( 5 ) APROPOS the other contention of the learned counsel appearing for the petitioner that there is a confession of the other accused in this case against the petitioner and the cases against the other accused have been ended in acquittal, that confession cannot now be relied upon against the petitioner and, therefore, to allow the proceedings to continue against the petitioner is nothing but harassment and abuse of the process of the Court; having regard to the averments made in the charge sheet that there were two groups - one led by Ravi singh and the other led by Sudesh Singh @ laddu Singh, to which the petitioner and the other accused in this case belong and that there had been enmity between the two groups since a long time, the members belonging to both the groups involved in several cases pertaining to Mangalhat P. S afzalgunj P. S. , and Shallinayatgunj; and that on 20. 11. 1994 Laddu Singh was murdered by other group and in retaliation on 21. 11. 1994 A. I to A. I I who are associates of Laddu Singh having armed themselves with deadly weapons attacked L. W. I and also damaged the household articles of l. W. 3, the sister of Ravi Singh and also burnt the house of L. W. 2; and that from there at about 09. 30 A. M. they went to the house of Vijay Singh, attacked him and his brother-Rajan Singh with deadly weapons and also damaged the household articles; it is obvious that the prosecution is not solely relying upon the alleged confession of the co-accused but there is eye-witnesses account. 30 A. M. they went to the house of Vijay Singh, attacked him and his brother-Rajan Singh with deadly weapons and also damaged the household articles; it is obvious that the prosecution is not solely relying upon the alleged confession of the co-accused but there is eye-witnesses account. The ground that all the three eye-witnesses did not state anything about the offence at the time of the trial in the other two split up cases cannot be a ground from which it can be legitimately concluded that in the trial to be taken up against the petitioner herein, they are not going to speak anything tomorrow against him. It is too premature at this stage to conclude anything about the case. On the factual aspect, therefore, the request of the petitioner for quashing of the proceedings initiated against him cannot be countenanced. ( 6 ) THE Apex Court time and again held that the power under Section 482 of the code of Criminal Procedure to quash the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. ( 7 ) THE Apex Court in DELHI MUNICIPALITY v. RAM KISHAN, AIR 1983 SC 67 , held that the allegations mentioned in the FIR/complaint without adding anything thereto or subtracting anything therefrom shall be taken into consideration. ( 8 ) IN STATE OF KERALA v. O. C. KUTTAN, (1999) 2 SCC 651 , the Apex court held as follows:"having said so, the Court gave a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the fir or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U. P. v. O. P. Sharma (1996) 7 SCC 705 } a three-Judge Bench of this court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three- judge Bench of this Court in the case of rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397 ] where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole". ( 9 ) FOLLOWING the said judgement, the Apex Court in SATVINDER KAUR v, state (GOVT OF NCT OF DELHI), (1999) 8 SCC 728 , in para 14 held thus:"it is also settled by a long course of decisions of this Court to the purpose of exercising its power under Section 482 crpc to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se: it has no jurisdiction to examine the correctness or otherwise of the allegations". In MEDCHL CHEMICALS andpharma (P) LTD. V BIOLOGICALE LTD. In MEDCHL CHEMICALS andpharma (P) LTD. V BIOLOGICALE LTD. the Apex court held thus:"to exercise powers under Section 482 of the Code, the complaint in its entirety will nave to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint the truth or falsity of the allegations would not be gone into by the Court at this earliest stage. Whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial. " ( 10 ) IN view of these authoritative pronouncements of the Apex Court, it is not permissible at this stage to sift the evidence or to see whether on merits the case stands or falls against the petitioner even if the trial were to be conducted. Paucity of evidence and the chance or possitbility of conviction of accused being remote, due to weakness of the case of the prosecution are not the relevant considerations for the Court at that stage. The consideration of the learned counsel appearing for the petitioner, therefore, merits no consideration. ( 11 ) THE learned counsel appearing for the petitioner seeks to place reliance upon a judgement of the Apex Court in haricharax KURMI v. STATE OF bihar, a Constitution Bench of the Apex court held in para 12 as follows:"as a result of the provisions contained in S. 30. Evidence Act. The confession of a co-accused has to be regarded as amounting to evidence in a general way because whatever is considered by the court is evidence: circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus though confession may be regarded as evidence in that generic sense because of the provisions of S. 30 the fact remains that it is not evidence as defined by S. 3 of the Act. Thus though confession may be regarded as evidence in that generic sense because of the provisions of S. 30 the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion -with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. " ( 12 ) THERE can be no quarrel with the legal position in view of the authoritative pronouncement of a Constitution Bench of the Apex Court, but still it remains to be seen whether there is only the confession of the co-accused against the petitioner and the three eye-witnesses cited in the case would not speak anything tomorrow against the petitioner. ( 13 ) FOR these reasons, the criminal petition tails and is accordingly dismissed.