Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 230 (AP)

K. Radhakrishna @ Naradaiah v. K. Mohana Murali

2006-02-22

P.S.NARAYANA

body2006
( 1 ) HEARD Ms. Padma, Counsel representing the petitioners/a-1 and A-2 and the learned public Prosecutor Sri Nageswar Rao. ( 2 ) THE question raised by the learned counsel representing the petitioners in the present Criminal Petition is when on a particular set of facts, final report filed by the police was accepted and the crime was closed, on the self-same set of facts, a private complaint be entertained or not. The learned counsel no doubt raised certain grounds like bar under Section 300 Cr. P. C. and also article 20 (2) of the Constitution of India. It is needless to say that the said provisions are not applicable to the facts of the case as the present case is only at the stage of taking cognizance of the complaint. ( 3 ) IT is stated that the 1st respondent/ defacto complainant lodged complaint alleging that his wife made an attempt to commit suicide on 26-10-2001 and when he tried to save her he received burn injuries and subsequently on 30-10-2001 his wife died and pursuant thereto Crime No. 139/ 2001 was registered by Pakala Police Station and thereafter the 1st respondent/complainant was arrested, remanded to judicial custody and was subsequently enlarged on bail. Several other allegations also had been narrated. The main ground raised is that on earlier occasion when a previous private complaint was forwarded to police under section 156 (3) Cr. P. C. the police filed a final report and the learned Judicial First Class magistrate on the strength of the final report wherein it was stated that the complaint was false, closed the crime. The learned Counsel for the petitioner placed strong reliance on pramatha Nath v. Saroj Ranjan and also yet anotherdecision in Bindeshwari Prasad Singh v. Kali Singh and would contend that virtually the present proceedings would amount to either reviewing or recalling of the prior order accepting the final report and closing the crime earlier. The learned Counsel also maintained that this is impermissible. In view of the same inasmuch as the present complaint is based on the same cause of action it is stated that it would amount to abuse of process of law and hence the same is liable to be quashed. The learned Counsel also maintained that this is impermissible. In view of the same inasmuch as the present complaint is based on the same cause of action it is stated that it would amount to abuse of process of law and hence the same is liable to be quashed. ( 4 ) THE learned Public Prosecutor had placed reliance on V. V. Satyanarayana Raju v. Pa/a Laxmikantham wherein the learned judge in fact followed the decision of the apex Court in Gopal Vijay Verma v. Bhuneswar Prasad Singh and others4 and also the decision in Crl. R. C. No. 419/92, dated 13-10-1992 of this Court and held that in spite of a judicial order being passed on the final report filed by police under Sec. 176 (3) cr. P. C. accepting it and closing the case as false, it is open to the Magistrate to take cognizance on the basis of a private complaint. In fact, in the said decision, the learned Judge dissented from the view expressed in Namasivayam v. State. ( 5 ) IN Smt. Jagawwa v. Veeranna the apex Court held at para 5 as hereunder: mr. Bhhandare laid great stress on the words the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for the High Court or even this court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to fine out whether or not the allegations in the complainant, if proved, would ultimately end in conviction of the accused. Once the magistrate has exercised his discretion it is not for the High Court or even this court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to fine out whether or not the allegations in the complainant, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the code. Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High court can quash proceedings. " ( 6 ) ON appreciation of the facts of the present case, the decisions relied upon by the learned Counsel for the petitioners are distinguishable inasmuch as in the said decisions what had been dealt with was the scope of enquiry under Section 202 Cr. P. C. and also the aspect of exercise of inherent powers by the Magistrates and the power of reviewing and recalling the orders. P. C. and also the aspect of exercise of inherent powers by the Magistrates and the power of reviewing and recalling the orders. In fact, this Court in the decision referred (3 supra) referred to the decisions in P,v. Krishna prasad v. K. V. N. Koteswara Rao and v. Ramdas v. State of A. P. and observed that in both the said decisions no reference had been made to the pronouncement of the apex Court referred (4) supra. In the light of the decision of this Court referred (3) supra which had been delivered following the decision of the Apex Court referred (4) supra, this Court is of the considered opinion that the view expressed by the learned Judge that it is open to the Magistrate to take cognizance on the basis of a private complaint in spite of the earlier judicial order closing the case as false accepting the final report filed by the police under Section 176 (3) Cr. P. C. , (?) may have to be accepted. Hence, in the present case, it cannot be said that the learned magistrate had in any way acted illegally. ( 7 ) IN view of the same, the proceedings in c. C. No. 42/2002 on the file of Judicial First class Magistrate, Pakala cannot be quashed. Accordingly the Criminal Petition is bound to fail and the same shall stand dismissed.