Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 248 (AP)

K. Venkateshwarlu v. R. G. Subramanyam

2011-03-17

RAJA ELANGO

body2011
Order Petitioners approach this Court aggrieved over the registration of FIR in Cr.Nos.95 of 2007 and 96 of 2007 on the basis of reference made by the learned Magistrate under Section 156(3) of Cr.P.C. based on a complaint given by one R.G.Subramanyam, S/o. R.Govinda Swamy, Sub-Inspector of Police(in Cr.No.95 of 2007) and one Sri Kandula Venkata Reddy, S/o. K.Pulla Reddy, Inspector of Police(in Cr.No.96 of 2007) whereby the petitioners are arrayed as accused for an offence under Sections 499 and 500 IPC. 2. The brief facts of the case are as follows: One news item was published in EENADU Telugu Daily newspaper under the caption of “MATKA MARRIKI OODALIVIGO” whereby a defamatory publication was made in the said paper against the police officers. Hence, the Inspector and Sub-Inspector of the concerned area preferred complaints before the Magistrate concerned by invoking the provisions under Section 200 Cr.P.C. On filing of such complaints, the learned Magistrate referred the said complaints to police under Section 156(3) Cr.P.C. for registration of FIR and investigation. 3. The learned counsel for the petitioners raised the following points for consideration: 1. The offence being non-cognizable, the learned Magistrate ought not to have referred the matter under Section 156(3), 2. the complaint should be only by an aggrieved person and 3. thechief editor cannot be arrayed as an accused since no knowledge is attributed in the complaint against him. 4. The first contention raised by the learned counsel for the petitioners is that in a non-cognizable offence the learned Magistrate ordered for investigation, which is bad in law. Further, for the said offence there is a bar under Section 199 Cr.P.C. to take cognizance unless the complaint is filed by an aggrieved person. 5. When a complaint is filed under Section 200 Cr.P.C., the learned Magistrate left open with the following options:- a. he can refer the matter for investigation under Section 156(3) Cr.P.C. prior to taking cognizance, b. he can take cognizance and proceed with the matter, c. he can order for an enquiry under Section 202 Cr.P.C., and d. he can proceed with the complaint and he can also rely on the report filed under Section 202 Cr.P.C. 6. Even though under Section 156(3) Cr.P.C., the Magistrate is not taking cognizance of the offence, as observed by this court in an earlier occasion the learned Magistrate forwarded the complaint under Section 156(3) Cr.P.C. since he is not taking cognizance of the offence. It does not mean that the Magistrate has no power to apply his mind whether the matter is to be investigated or not. In the present case the learned Magistrate without applying his mind in a non-cognizable offence ordered for enquiry. But, at the same time this Court is also aware of the fact in a non-cognizable offence, the police also have no power to investigate unless and otherwise with the order of the Magistrate under Section 155(2) and (3) Cr.P.C. Even though the reference is made by the Magistrate under Section 156(3) without application of mind in a non-cognizable offence, the police is at liberty to proceed in view of the provisions under Section 155(2) and (3) Cr.P.C. Even assuming for a moment that the orders passed by the Magistrate and the investigation are not bad in law, the point remains to be considered is whether the charge sheet filed by the Investigating Officer on the basis of the reference made by the learned Magistrate where the Court has power to take cognizance of the offence is valid or not. 7. In the present case, admittedly the offence alleged is under Sections 499 and 500 Cr.P.C. As rightly pointed out by the learned counsel for the petitioners there is a bar under Section 199(1) Cr.P.C., as per which, the complaint should be filed only by the aggrieved person. A charge sheet filed by the police officer cannot be called as a complaint filed under Section 200 Cr.P.C. Hence, this Court is of the view that by the reference under Section 156(3) Cr.P.C. and the investigation proceeded by the police officer under Section 155(2) and (3) would serve no purpose even if the charge sheet is filed before the court concerned in view of the bar under Section 199(1) Cr.P.C. 8. Learned counsel for the respondents fairly admits that these complaints should not even referred under Section 156(3) Cr.P.C. in view of the provisions under Cr.P.C. as mentioned above. Learned counsel for the respondents fairly admits that these complaints should not even referred under Section 156(3) Cr.P.C. in view of the provisions under Cr.P.C. as mentioned above. But at the same time, he contended that the respondents herein filed the complaints only for the purpose of taking cognizance and to proceed further before the Magistrate, whereas an order passed by the learned Magistrate by invoking the provisions under Section 156(3) Cr.P.C., the complaints should not be allowed to suffer. 9. This Court is also of the view that the complainants have approached the Court with a proper prayer, whereas, the learned Magistrate has referred the same under Section 156(3) Cr.P.C. This Court without going into the other two contentions raised by the learned counsel for the petitioners, in view of the above discussions direct the respective complainants herein to file fresh complaints and as far as the question of limitation is concerned, it should be condoned in view of the fact that already the respondents have set the law in motion and also they filed the complaints within the period of limitation. On such filing of the complaints, the learned Magistrate is at liberty to take cognizance if the said complaints disclose any offence, and the complaints are in accordance with the provisions of law. 10. With the above observation, the criminal petitions are disposed of.The miscellaneous petitions, if any, filed along with the criminal petition shall stand closed.