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Andhra High Court · body

2008 DIGILAW 41 (AP)

Pallavolu Rammohan Reddy v. State of A. P.

2008-01-24

G.V.SEETHAPATHY

body2008
ORDER This Criminal Petition is filed under Section 482Cr.P.C. seeking to quash further. proceedings against the petitioners/ A-2 in C.C. No. 122/2007 on the file of the II Addl.Judicial First Class Magistrate, Proddatur. 2. Heard the learned counsel for the petitioner. None appears for the 2nd respondent! de facto complainant despite of service of notice. Perused the records. 3. On a complaint given by the 2nd respondent herein, the police registered a case in Cr. No. 101/2006 under Section 324 r/w 34 IPC and Section 3(1 )(x) of S.C./S.T. (POA) Act, 1989. After investigation, the police filed the charge sheet against 7 others, deleting the name of the petitioner/A-2. In the charge sheet, it is stated that A-1 , A_3 to A-8 along are liable for the offence under Section 147, 148, 324, 506 r/w 149 of IPC. The learned Magistrate, however, has taken cognizance of the said offences against the petitioner/A-2 also in C.C. No. 122/2007, though the police have deleted his name from the charge sheet. In the order dated 09-07-2007, while taking cognizance, the learned Magistrate has stated that the statements of the complainant and one James @ Chiranjeevi, recorded under Section 161 Cr.P.C. prima facie, reveal that the petitioner/ A-2 Rammohan Reddy beat the complainant with stick on his left shoulder and caused injury, and thus, there is prima facie case against the petitioner/A-2 also. The learned Magistrate issued non-bailable warrant against the petitioner/A-2. Aggrieved by the same, the petitioner/A-2 preferred revision in Criminal Revision Petition No. 28/2007 before the II Addl. Sessions Judge, Kadapa at Proddatur. The learned Sessions Judge, by order dated 05-11-2007, dismissed the revision, but, however set aside the issuance of nonbailable warrant and directed the trial court to issue summons to the petitioner/A-2. In the impugned order, the learned Sessions Judge has observed that the Magistrate can differ with the police report and take cognizance of the offence and the learned Magistrate has furnished reasons fordoing so, and hence, the discretion was exercised in a legal manner. 4. In the impugned order, the learned Sessions Judge has observed that the Magistrate can differ with the police report and take cognizance of the offence and the learned Magistrate has furnished reasons fordoing so, and hence, the discretion was exercised in a legal manner. 4. Section 190 of Cr.P.C. deals with the powers of the Magistrate to take cognizance of the offence and states as follows: Section 190: Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) Upon receiving a complaint offacts which constitute such offence; (b) Upon a police report of such facts; (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed; (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offence as are within his competence to inquire into or try. 5. A perusal of the above provision would reveal what is taken cognizance by the learned Magistrate is an offence, but not an accused. Even if the police filed charge sheet in respect of only some offences and if the material on record reveals prima facie case to proceed against the accused in respect of certain other offences, the Magistrate is certainly empowered under Section 190 of Cr.P.C. to take cognizance of those other offences, which are omitted by the police in the charge sheet. Section 190 of Cr.P.C. does not, however, confer any power on the Magistrate to implead a person as an accused whose name was deleted by the police in the charge sheet, after due investigation. 6. Section 190 of Cr.P.C. does not, however, confer any power on the Magistrate to implead a person as an accused whose name was deleted by the police in the charge sheet, after due investigation. 6. The specific provision, which enables the Magistrate to implead a person as an accused, in addition to those arrayed in the charge sheet, is contained in Section 319 of Cr.P.C. which states as follows: Section 319: Power to proceed against other persons appearing to be guilty of offence: (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed; (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid; (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial or, the offence which he appears to have committed; (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 7. A perusal of the above provision clearly shows that in the course of any inquiry into, or trial of an offence, if it appears from the evidence that any person who is not impleaded as an accused, has committed any offence and ought to be tried along with other accused, then the Court may proceed against such person for the offences which appear to have been committed. 8.ln the present case, the stage of invoking powers under Section 319 of Cr.P.C. have not been yet reached. It is only at the threshold stage of taking cognizance. But the learned Magistrate has chosen to implead the petitioner/ A-2 and the learned Sessions Judge confirmed the same by invoking Section 190 Cr.P.C. which is not permissible. 8.ln the present case, the stage of invoking powers under Section 319 of Cr.P.C. have not been yet reached. It is only at the threshold stage of taking cognizance. But the learned Magistrate has chosen to implead the petitioner/ A-2 and the learned Sessions Judge confirmed the same by invoking Section 190 Cr.P.C. which is not permissible. It is, however, open to the learned Magistrate to invoke the powers under Section 319 Cr.P.C. at the appropriate time in the course of enquiry or trial, if it appears that there is evidence to proceed against the petitioner/A-2 and ought to be tried along with other accused. The exercise of the said power under Section 319 Cr.P.C. at the stage of taking cognizance is impermissible and unwarranted. 9. In those circumstances, the impugned order of the learned Magistrate, as confirmed by the learned Sessions Judge, impleading the petitioner/A-2 as an accused in C.C.No. 122/2007 on the file of the II Addl. Judicial First Class Magistrate, Proddatur, are not sustainable, and they are, accordingly, set aside. 10. The Criminal Petition is, accordingly, allowed.