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2004 DIGILAW 752 (AP)

Mamidi Apparao v. State Of A. P.

2004-07-29

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri Y. Vivekananda swamy, the learned Counsel representing appellant-accused and the learned Additional public Prosecutor. ( 2 ) THE appellant-accused had preferred the present appeal against the judgment dated 10-9-1997 in CC No. 20 of 1996 made by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989-cum-I Additional district and Sessions Judge, Krishna, machilipatnam. ( 3 ) THE appellant-accused belongs to a forward caste and the prosecution had charged him with Sections 353, 323 and 506 Part II IPC and Section 3 (l) (x) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. PW-1 is the then Mandal Revenue Officer of penuganchiprolu. PW-2 is the then Mandal revenue Inspector of Penuganchiprolu. PW-3 is the then Village Administrative officer of Penuganchiprolu. PW-4 is the attender attached to the Mandal Revenue office, Penuganchiprolu. PW-5 is the village servant of Penuganchiprolu and they are all public servants and Dolu Dasaradhi, mandal Revenue Officer (PW-1), Y. Raghava rao, Mandal Revenue Inspector (PW-2) and mullapati Dasu, Village servant (PW-5) are the members of the Scheduled Castes. ( 4 ) IT is the story of the prosecution that on 24-4-1994 at about 8. 30 p. m. , while d. Dasaradhi-PW1, the then Mandal revenue Officer accompanied by the other public servants, inspected the Penuganchiprolu water tank to check water level and to fill it up with water in discharge of their official duties and after inspection of the tank PW-1 and others returned to penuganchiprolu and when they reached near the house of one Lagadapati Venkateswara rao, the accused came there in a drunken state, picked up quarrel stating that the revenue Officials were collecting revenue and creating scare among the villagers and he abused the Mandal Revenue Officer and also threatened them with dire consequences and the accused furthe threatened that he would put an end to their lives and the accused also remarked that he would secure country made bombs from Cuddapah and hurl the same at their houses and the revenue Officer and ruin their houses. It is stated that the Revenue Officials were taken away at the rude conduct of the accused and on the next day morning they lodged a complaint with the police and the police registered the same as a case in crime No. 35 of 1994 under Sections 353, 323 and 506 IPC and Section 3 (l) (x) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and later the charge-sheet was filed. It is stated that charge-sheet was originally filed before the Metropolitan Sessions Judge, vijayawada, who had taken cognizance of the same as CC No. 28 of 1994 and framed the charges, for which the accused pleaded not guilty and the same was transferred to the Special Judge-cum-I Additional District and Sessions Judge, Krishna, Machilipatnam, under the Scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 and the same was renumbered as CC. No. 20 of 1996. The prosecution examined PWs. 1 to 10 and got marked Exs. Pl to P14 and ex. D-1, certificate issued by the Executing engineer, Oandm Division, Hyderabad. ( 5 ) THE learned Special Judge on appreciation of the evidence available on record, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 353 IPC and to undergo rigorous imprisonment for a period of six months for the offences punishable under Section 506 Part II IPC and also sentenced him to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for a further period of three months for the offence punishable under Section 3 (l) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the main sentences were directed to run concurrently. Aggrieved by the same, the present appeal is preferred. ( 6 ) SRI Vivekananda Swamy, the learned Counsel representing the appellant- accused would submit that this is a special Court and the Special Judge dealing with these offences cannot take cognizance straight away and the provisions of section 193 Cr. PC regarding cognizance of the offence by a Court of Session would definitely apply to a case of this nature. The learned Counsel placed strong reliance on moly v. State of Kerala, 2004 Crl. LJ 1812, vidyadharan v. State of Kerala, 2003 (2) ald (Crl.) 1019 (SC) = 2004 Crl. PC regarding cognizance of the offence by a Court of Session would definitely apply to a case of this nature. The learned Counsel placed strong reliance on moly v. State of Kerala, 2004 Crl. LJ 1812, vidyadharan v. State of Kerala, 2003 (2) ald (Crl.) 1019 (SC) = 2004 Crl. LJ 605 and M. A. Kuttappan v. E. Krishnan Nayanar, 2004 (1) ALD (Crl.) 656 (SC) = 2004 Crl. LJ 1770. Even otherwise, the learned Counsel on merits would contend that in the light of ex. Dl and ingredients of the offences alleged, accused cannot be convicted. ( 7 ) PER contra, the learned Additional public Prosecutor had placed reliance on state of Madhya Pradesh v. Bhooraji, 2001 (2) ALD (Crl.) 604 (SC), and had drawn the attention of this Court to the evidence of pw-1 to PW10 and Exs. Pl to P14. ( 8 ) IN the light of the subsequent decisions where all the aspects had been considered by the Apex Court, the decision referred State of Madhya Pradesh v. Bhooraji, (supra) cannot be followed in preference to the later view expressed in the decisions referred Moly v. State of kerala, Vidyadharan v. State of Kerala and M. A. Kuttappan v. E. Krishnan Nayanar, (supra ). There cannot be any doubt or controversy that this is an illegality inasmuch as the same is in contravention of section 193 Cr. PC. In N. Bhargavan Pillal (dead) by LRs. v. State of Kerala, AIR 2004 sc 2317 , the Apex Court held that the view expressed without analyzing the statutory provision cannot be treated as a binding precedent and at the most it is to be considered as having been rendered per incurium. ( 9 ) THIS is no doubt a Calendar Case. Even then a Court of Session cannot take cognizance of any offence as original Court straight away. Section 193 Cr. PC is under chapter XIV dealing with conditions requisite for initiation of proceedings. Section 190 Cr. PC deals with cognizance of offences by Magistrates. Section 193 Cr. ( 9 ) THIS is no doubt a Calendar Case. Even then a Court of Session cannot take cognizance of any offence as original Court straight away. Section 193 Cr. PC is under chapter XIV dealing with conditions requisite for initiation of proceedings. Section 190 Cr. PC deals with cognizance of offences by Magistrates. Section 193 Cr. PC deals with Cognizance of offences by Courts of Session and the provision reads :"except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this code. "no doubt Section 193 Cr. PC commences with the words "except as otherwise expressly provided by this Code. . . . . . . . ". Section 209 Cr. PC falls under Chapter XVI dealing with Commencement of Proceedings before Magistrates. Section 209 Cr. PC dealing. with Commitment of case to Court of Session when offence is triable exclusively by it reads as hereunder :"when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall, (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment had been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of session. "the stand of the prosecution is that inasmuch as it is only a Calender Case and offences are triable by a Magistrate merely because cognizance is straight away taken by the special Court, on the ground of noncommittal it cannot be said that there is an illegality and it would vitiate the trial. The words ". . . . . . The words ". . . . . . no Court of Session shall take cognizance of any offence as a Court of original jurisdiction. . . . . . . . . "in Section 193 cr. PC assume importance. Both the provisions may have to be read together and though the offences are not exclusively triable by a Court of Session, the Special court being a Court of Session, cannot take cognizance of any offence straight away as an original Court. No other interpretation may be possible in this regard unless there is clear Legislative clarification relating to the same. ( 10 ) BE that as it may, I have carefully scrutinized the evidence available on record. Section 353 IPC reads :"whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both. "section 506 IPC reads : "punishment for criminal intimidation : whoever commits the offences of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. " if threat be to cause death or grievous hurt, etc. : And if the threat be to cause death, or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death, or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punishable with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. " ex. Dl is the letter written by Executive engineer, Oandm Division, Jaggaiahpet to kakani Hari Babu, Vice-President, Primary agriculture Co-operative Society, penuganchiprolu wherein it was mentioned that under the instructions of the Collector water was released into important tanks including Penuganchiprolu from Nagarjuna sagar canals from 19th to 23rd April 2004. " ex. Dl is the letter written by Executive engineer, Oandm Division, Jaggaiahpet to kakani Hari Babu, Vice-President, Primary agriculture Co-operative Society, penuganchiprolu wherein it was mentioned that under the instructions of the Collector water was released into important tanks including Penuganchiprolu from Nagarjuna sagar canals from 19th to 23rd April 2004. It is pertinent to note that the occurrence is said to have taken place on 24-4-1994. Section 3 (x) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) act, 1989 reads:"whoever, not being a member of a scheduled Caste or a Scheduled Tribe intentionally insults or intimidates with intend or humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. "as already referred to supra, the incident is said to have happened on 24-4-1994. The mandal Revenue Officer, PW-1, accompanied by PW2 to PW5 visited penuganchiprolu water tank to find out water level to fill it up with water and after verification they returned to the village. At about 8. 30 p. m. , they reached Kakanivari street where the accused was in a drunken condition and he assaulted PW1, intimidated PW-1 to PW5 Revenue Officials who are public servants and also insulted them in the name of caste. PW6, PW8 and another Ramanadham are said to be the eye-witnesses. The incident alleged by the prosecution is at about 8. 30 p. m. , when they were going in a street it is stated that the accused in a drunken condition had committed the offences aforesaid. In the light of the evidence available on record, it is highly doubtful whether the ingredients of Section 353 IPC are satisfied since at the relevant point of time, these public servants cannot be said to be discharging their lawful duties. Even otherwise, Section 506 Part II IPC is not applicable at all since under Section 353 ipc the punishment is only two years or fine or both. The other allegation is that the accused in a drunken state scolded them in the name of caste in public view. In the light of the suggestions to these witnesses there appears to be some political controversy. Ex. The other allegation is that the accused in a drunken state scolded them in the name of caste in public view. In the light of the suggestions to these witnesses there appears to be some political controversy. Ex. D1 and the contents thereof would create suspicion relating to the very incident. It is needless to say that when two views are possible, the view beneficial to the accused may have to be preferred and hence the accused is entitled to the benefit of doubt. ( 11 ) IN the light of the view expressed by me, the other evidentiary details relating-to pws. l to 10, Exs. Pl to P-14 and Ex. Dl need not be discussed at length. ( 12 ) IN the result, the conviction and sentenced dated 10-9-1997 in CC No. 20 of 1996 imposed by the Special Judge-cum-I Additional Sessions Judge, Krishna machilipatnam under the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 against the appellant- accused are hereby set aside and the criminal appeal is hereby allowed. The bail bonds of the appellant-accused stand cancelled.