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2009 DIGILAW 474 (AP)

Perugu Gopinath Reddy v. P. Sushmitha

2009-07-20

G.BHAVANI PRASAD

body2009
Judgment :- Accused 2 to 6 in Crime No.65 of 2009 of Musheerabad police station, Hyderabad registered under Sections 406 and 420 of the Indian Penal Code and Section 3 (1) (x) and (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 on a reference by the IX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad under Section 156 (3) of the Code of Criminal Procedure, filed the petition to quash the further proceedings against them therein. The private complaint was filed by the 1st respondent herein alleging that the Women Police Station filed a charge sheet in C.C. No.390 of 2008 before the XIII Additional Chief Metropolitan Magistrate, Hyderabad under Section 498-A of the Indian Penal Code observing therein that it was suggested to the complainant to initiate legal action separately against the offences committed by the accused under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said investigating agency did not take action under the said Special Act and hence, the 1st respondent filed the complaint before the Court after Musheerabad police station refused to entertain her report in this regard. The petitioners, while denying the factual allegations made against them in the complaint and claiming innocence of the offences alleged against them, further contended that the allegations in the private complaint which was registered as Crime No.350 of 2007 of Central Crime Station, Hyderabad on a reference by the Court and the charge-sheet filed in C.C. No.390 of 2008 on completion of investigation into the said crime, are identical and the advice of the investigating officer to file another case is illegal, as it is his duty to register the case under appropriate sections of law and file a final report under Section 173 of the Code of Criminal Procedure. The 1st respondent in her counter affidavit filed along with Criminal M.P. No.4315 of 2009 contended that the earlier charge-sheet filed by the police gave an option to her to file a separate complaint under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and hence, she was forced to file a separate complaint, which was referred to the police and is being investigated into. She claimed that she cannot be deprived of her right to pursue the remedies in respect of the offences committed against her merely due to non-inclusion in the earlier charge-sheet. The above question is the primary question in controversy between the parties concerning the maintainability of Crime No.65 of 2009 and hence, the questions in controversy between the parties about the truth or otherwise of the sequence of events or the motives or background as respectively alleged against them are not being referred to as being not quite necessary for determination of this criminal petition on merits. Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioners, Sri C. Padmanabha Reddy, learned senior counsel for the 1st respondent and Sri H. Prahalad Reddy, learned Additional Public Prosecutor are heard at length. Sri C. Padmanabha Reddy, learned senior counsel referred to Sankaran Moitra v. Sadhna Das (2006 (3) All India Criminal Law Reporter 54), wherein the Apex Court was considering the scope of Section 210 of the Code of Criminal Procedure, which governs a situation where a complaint is pending for enquiry or trial and the Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case on a report by a police officer on investigation into the same offence and considered the same to be inapplicable to cases whose basic tenor was different and the prosecution version in which was quite different. The learned senior counsel further referred to Dilawar Singh v. State of Delhi (2007 (4) All India Criminal Law Reporter 665), wherein also the Apex Court apart from considering the effect of the delay in filing of the first information report, the powers of police officer to investigate cognizable offences, the power of the Magistrate to order an investigation under Section 156 (3) or under Section 202 (1) of the Code of Criminal Procedure, stated the clear position to be that any Judicial Magistrate before taking cognizance of the offence can order investigation under Section 156 (3) of the Code of Criminal Procedure and for the purpose to direct registration of the first information report and it is the duty of the officer incharge of the police station to register first information report to take further steps contemplated by Chapter XII of the Code of Criminal Procedure thereafter. The Sub-Inspector of Police, Women Police Station, Central Crime Station, D.D., Hyderabad, who filed the charge-sheet in C.C.390 of 2008, stated therein that it was suggested to the complainant to initiate legal action separately again for the offences committed by them under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is seen from the said charge-sheet, the first information report in Crime No.65 of 2009 and the remand case diary therein with the investigation in Crime No.65 of 2009 having been taken up by the Assistant Commissioner of Police, Abids Division, Hyderabad, that the factual allegations against the accused in C.C. No.390 of 2008 and Crime No.65 of 2009 are more or less identical. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with the Statutory Rules of 1995 thereunder prescribes an investigation under the said Act to be by an officer not below the rank of Deputy Superintendent of Police, which is so being done in Crime No.65 of 2009, while the investigation leading to C.C. No.390 of 2008 was done by a Sub- Inspector of Police. It was probably due to the statutory disablement for him to investigate the alleged offences under the Special law that the investigating officer in C.C. No.390 of 2008 advised the complainant/1st respondent herein to initiate legal action separately again for the offences allegedly committed by the accused under the Special law. The propriety or impropriety of such advice apart, the question herein is about the sustainability of Crime No.65 of 2009 in the light of C.C. No.390 of 2008 covering the same set of facts. Section 210 of the Code of Criminal Procedure provides no answer to such a situation as it is concerning the procedure to be followed in respect of a complaint and police investigation in respect of the same offence and the offences herein are different and distinct with C.C. No.390 of 2008 concerning an offence punishable under Section 498-A of the Indian Penal Code, while Crime No.65 of 2009 is concerning the offences punishable under Sections 406 and 420 of the Indian Penal Code and Section 3 (1) (x) and (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 respectively. A perusal of various provisions of the Code of Criminal Procedure, 1973 and the Criminal Rules of Practice and Circular Orders did not indicate such a situation to be specifically covered by any provision, and as laid down by the Apex Court in the two decisions referred to above, either the jurisdiction of the Magistrate to order registration of first information report and investigation into it by the police under Section 156(3) of the Code of Criminal Procedure or the inapplicability of Section 210 of the Code of Criminal Procedure to cases where the basic tenor and the prosecution version in two cases are quite different, cannot be in doubt. While it could have been appropriate and reasonable that all the offences arising out of the same sequence of events could have been investigated into and prosecuted together in one case, the Court is presented with a fait accompli where in C.C. No.390 of 2008 the accused were being prosecuted only in respect of an offence which the investigating officer therein was competent to investigate and the aggrieved de facto complainant was left to pursue her remedies in accordance with law in respect of the offences alleged to have been committed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. While it is another matter that the de facto complainant took advantage of such advice to file a private complaint including the alleged offences under Sections 406 and 420 of the Indian Penal Code also, the de facto complainant could not have been left without any remedy merely because of the impropriety in the advice of the earlier investigating officer. While it is another matter that the de facto complainant took advantage of such advice to file a private complaint including the alleged offences under Sections 406 and 420 of the Indian Penal Code also, the de facto complainant could not have been left without any remedy merely because of the impropriety in the advice of the earlier investigating officer. Section 300 Sub-section (4) of the Code of Criminal Procedure appears to throw light on the legislative intent and statutory policy that should govern such situations when it states- "A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged." Illustrations (e) and (f) of Section 300 make the significance of Sub-section (4) more explicit when a person charged with and convicted by a Magistrate of the Second Class for theft of the property was held to be susceptible to being charged with and tried for robbery on the same facts obviously by a Magistrate of First Class and when the persons charged by a Magistrate of the First Class for robbery and convicted of the same were stated to be liable to be charged with and tried for a dacoity triable only by a Court of Session on the same facts. Of course, the bar under Sub-section (1) of Section 300 against double jeopardy by duplication of trial all over again after trial and conviction or acquittal for an offence by a "Court of competent jurisdiction", on the same facts for any other offence for which a person could have been differently charged and convicted, has to be read together with Sub-section (4) in appreciating the scope of the jurisprudential philosophy underlying Section 300. Ramekbal Tiwary v. Madan Mohan Tiwary (1967 AIR (SC) 1156), by a five Judge Bench of the Apex Court, indicates the approach to be adopted in such cases. Ramekbal Tiwary v. Madan Mohan Tiwary (1967 AIR (SC) 1156), by a five Judge Bench of the Apex Court, indicates the approach to be adopted in such cases. That was a case where under the Code of Criminal Procedure, 1898, the Magistrate considered the evidence to have not made out an offence under Section 307 of the Indian Penal Code and tried the accused for the offences under Sections 326 and 338 of the Indian Penal Code and acquitted them. The Court of Session and the High Court set aside the orders of the Magistrate in respect of the appellant before the Apex Court and directed committal of the said appellant to the Court of Session for the offence punishable under Section 307 of the Indian Penal Code. Repelling the contention that there can be no commitment for an offence under Section 307 of the Indian Penal Code in view of the acquittal on the charge under Sections 326 and 338 of the Indian Penal Code, the Apex Court interpreted Section 403 Sub-sections (1) and (4) of the Code of Criminal Procedure, 1898, which are in pari materia with Sub-sections (1) and (4) of Section 300 of the Code of Criminal Procedure, 1973, as making it obvious that there can be a fresh charge and trial under Section 307 of the Indian Penal Code in spite of the acquittal of the appellant on the minor charges and hence, upheld the order for commitment in spite of the acquittal on the minor charges. That was obviously because an offence under Section 307 of the Indian Penal Code could not have been charged or tried by the Magistrate and could have been charged and tried only by the Court of Session, falling within the scope of Sub-section (4) and not Sub-section (1). The true test in such cases is not so much whether the facts are the same in both trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction on the second charge-AIR 1939 Cal. 65 (70) quoted at page 79 of Volume 18 of the AIR Manual, Civil and Criminal, 5th Edition, 1989. The true test in such cases is not so much whether the facts are the same in both trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction on the second charge-AIR 1939 Cal. 65 (70) quoted at page 79 of Volume 18 of the AIR Manual, Civil and Criminal, 5th Edition, 1989. In the present case, C.C. No.390 of 2008 was on the investigation conducted by an officer not competent to investigate the offence under the Special Statute and the offence was taken cognizance and the case is pending trial before a Court (IX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad), which is not a Special Court under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Only a Court of Session specified by a Gazette notification to be a Special Court to try the offences under the Act is competent to try the offences under the Special Statute and consequently, on the principle of Sub-section (4) of Section 300 of the Code of Criminal Procedure, the IX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and the investigating officer who invoked the jurisdiction of that Court being incompetent vis-à-vis the Special Statute, the offence under the Special Statute constituted by the same acts/facts clearly appears to be open to investigation by an officer competent to investigate under the Special Statute and further open to cognizance and trial before a Special Court under the Special Statute, if appropriately brought before it in accordance with the prescribed procedure. Sri T. Pradyumna Kumar Reddy, learned counsel for the petitioners referred to Kari Choudhary v. Sita Devi (2002 Supreme Court Cases (Cri) 269) about the legal position that there cannot be two first information reports against the same accused in respect of the same case, but the ultimate object of every investigation was recognized to be to find out whether the offences alleged have been committed and if so, by whom and hence, it was held that the investigating agency is not precluded from further investigation in spite of forwarding a report under Sub-section (2) of Section 173 on a previous occasion in the light of Section 173 (8) of the Code of Criminal Procedure. Quashing the proceedings on too technical grounds, was deprecated therein. Quashing the proceedings on too technical grounds, was deprecated therein. Similarly Mahesh Chand v. B. Janardhan Reddy (2003 Supreme Court Cases (Cri) 425) laid down that there is no statutory bar in filing a second complaint on the same facts unless a decision was given in the first complaint upon a full consideration of the case, but not where the previous order was on an incomplete record or was manifestly absurd and unjust or new facts have been brought on record, which could not have been so brought earlier with reasonable diligence. In Upkar Singh v. Ved Prakash (2005 Supreme Court Cases (Cri) 211), the Apex Court held that like in Kari Choudhary v. Sita Devi (4 supra), Ram Lal Narang v. State (1979 SCC (Cri) 479) also held that even in cases where a first complaint is registered and investigation was initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. The observations in T.T. Antony v. State of Kerala (2001 SCC (Cri) 1048) about a second first information report and the effect of Section 162 of the Code of Criminal Procedure on the same, were explained as inapplicable unless there was an improvement on the facts mentioned in the original complaint or where a different version of the same incident was given. In the present case, though both the cases arise out of the same incident, the first case did not cover the offence under the Special Act, which could not be investigated by the investigating officer of the first case due to a statutory bar compelling the victim to pursue the second case. Poonam Chand Jain v. Fazru (2005 Supreme Court Cases (Cri) 190) is also a case where the legality of a second complaint on the same facts after dismissal of the first one was considered while reiterating the exceptional circumstances under which such a second complaint is maintainable and in view of the unenviable situation in which the victim herein was placed due to the advice of the investigating officer in the first case, for which the victim was not responsible, the second complaint may be possibly considered to be falling within the exceptional circumstances where such a second complaint would be maintainable. While this is so in respect of the alleged offences under Section 3 (1)(x) and (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, it has also to be noted that in so far as the offences punishable under Sections 406 and 420 of the Indian Penal Code are concerned, in respect of which also Crime No.65 of 2009 was registered on the second complaint on the same facts on which the earlier investigation of Crime No.350 of 2007 led to the filing of C.C. No.390 of 2008, the investigating officer and the Court being of competent jurisdiction, the principle underlying Sub-section (1) of Section 300 and not the one underlying Sub-section (4) of Section 300 of the Code of Criminal Procedure that should apply in respect of the said offences. However, as the investigating officer in Crime No.65 of 2009 can be reasonably expected to take note of such legal result in consequence of the admitted factual background while conducting further investigation and concluding it with a report under Section 173 of the Code of Criminal Procedure and as the Court of competent jurisdiction seized of C.C. No.390 of 2008 can also be equally expected to consider the entire material placed before it by now or at the subsequent stages of the case to take necessary action in accordance with law in respect of any such offences under Sections 406 and 420 of the Indian Penal Code, in respect of such accused as may be considered connected with the committal of such offences, either any expression of any conclusive opinion in that regard or taking recourse to the restricted inherent jurisdiction to order quashing in respect of the said offences may have an adverse impact on the further proceedings and result in both the cases. This Court should refrain from any such course of action that may cause irreversible prejudice to either or both the parties in the further proceedings in either or both the cases. Therefore, the same is left open for consideration in accordance with law by the concerned, thus, not foreclosing any remedies available under law to either party in this regard. This Court should refrain from any such course of action that may cause irreversible prejudice to either or both the parties in the further proceedings in either or both the cases. Therefore, the same is left open for consideration in accordance with law by the concerned, thus, not foreclosing any remedies available under law to either party in this regard. Though undoubtedly, the petitioners herein suffer inconvenience, expense, stress, trouble and the possibility of adverse verdict twice over for the same set of facts, which could have been avoided if the first complaint from the 1st respondent itself was comprehensively investigated into by a police officer competent to do the same and prosecuted before a Court of competent jurisdiction, at the same time, the legal right of the 1st respondent to complain against the offences covered by her second complaint and pursue the same to its logical conclusion, cannot be negatived or nullified on any such equitable considerations. As equities can only supplement and not override legal rights and liabilities, the further proceedings in Crime No.65 of 2009 do not appear to be susceptible to any quashing in exercise of the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, which can be invoked only in rarest of rare cases that too with great care, caution and circumspection as repeatedly emphasized by the Apex Court. Hence, the criminal petition is dismissed.