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Andhra High Court · body

2012 DIGILAW 253 (AP)

A. Bala Prasad v. State Government of A. P.

2012-03-09

L.NARASIMHA REDDY

body2012
Judgment : The petitioner was working as Superintendent of Observation Home for Boys, at Guntakal, Anantapur District. An item of news was published on 18.11.1999 in Vaartha daily, alleging that the petitioner has extracted work from one of the inmates of the Observation Home. Learned Judicial First Class Magistrate, Guntakal, who was working at that time (for short 'the Magistrate'), who was also functioning as Magistrate of the Juvenile Court, addressed an Official Memo, dated 18.11.1999, directing the Station House Officer (SHO), II Town Police Station, Guntakal, to register FIR against the petitioner, for the offences punishable under Sections 344, 346, 363, 365, 367, 368, 370 and 374 I.P.C. Mention was also made to Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'the Code'). Referring to these facts, the Station House Officer, filed a report on 30.07.2001. However, the same was not accepted by the Magistrate. It was six years thereafter, that another report was submitted and C.C.No.345 of 2007 was registered. Charges were framed by the trial Court, on 25.05.2011. The C.C. was transferred to the Court of Additional JFCM, Anantapur, by the Court of Sessions Judge, Anantapur, through order, dated 10.10.2011 passed in Crl.M.P.No.62 of 2011 filed by the petitioner. Having undergone the ordeal for the past 13 years, the petitioner prayed for a writ of certiorari to quash the entire proceedings. The petitioner, who appeared as party-in-person, submits that the very initiation of proceedings against him was contrary to law and is vitiated for more reasons than one. He further submits that the learned Magistrate has virtually taken cognizance of the matter, when he read the news item, discussed the matter with some persons, analyzed the facts of the case, fitted the same into the relevant provisions of law and took the view that an offence punishable under such provisions was committed. He contends that though mention was made to Section 156 (3) of the Code, he left nothing for the SHO, particularly when direction was issued to register FIR and provisions of law have already been mentioned. It is also pleaded that though he was a public servant, discharging duties in accordance with law, no effort was made either to obtain sanction, or to verify the facts. It is also pleaded that though he was a public servant, discharging duties in accordance with law, no effort was made either to obtain sanction, or to verify the facts. The petitioner further submits that the fact that the report submitted in the year 2001 was not accepted by the Court, was sufficient to put an end to the proceedings. He contends that several steps which cannot be supported in law, were taken almost for more than half a decade and it was only in the year 2007 that the C.C. was registered. He states that the case on hand presents a typical instance of gross misuse of the machinery under the Code and prays that the proceedings be quashed. He places reliance upon the judgments rendered by the Supreme Court and certain High Courts. Learned Government Pleader for Home, on the other hand, submits that the letter addressed by the Magistrate, clearly mentioned that reference was made under Section 156(1)(3) of the Code, indicating thereby that it was a pre-cognizance investigation and that the actual cognizance of the matter was taken only when the C.C. was registered. He contends that the Magistrate can be said to have taken cognizance of the matter, only when the steps were taken as provided for under Section 200 of the Code. Learned Government Pleader has also raised an objection as to the maintainability of the writ petition. It is stated that the petitioner can put forward all his contentions in the trial of the matter, and that a writ petition, that too at this length of time cannot be entertained. He too cited certain precedents. The proceedings against the petitioner commenced with a letter addressed by the Magistrate on 18.11.1999. Letter reads as under: "OFFCIAL MEMO Sub: Observation Home for Boys -Guntakal -Inmate by name Veeresh, being utilised at the Superintendent's house at Anantapur -as a servant -News item published in Vartha Telugu daily Edition dated 18.11.1999 – Investigation ordered -Report within one week -Regarding. @@@@ It is published in Vartha Telugu Daily District Edition dated 18.1.1999 that the inmate by name Veeresh, observation Home for Boys, Guntakal is being utilised in the house of Superintendent, at Anantapur as a servant and it is being done for the last 2 months. @@@@ It is published in Vartha Telugu Daily District Edition dated 18.1.1999 that the inmate by name Veeresh, observation Home for Boys, Guntakal is being utilised in the house of Superintendent, at Anantapur as a servant and it is being done for the last 2 months. The Welfare Board Chairman of the Observation Home for Boys, Guntakal by name Sri P.N.R.Prasad Reddy stated in the said publication that the Veeresh inmate was transferred to Observation Home for Boys Bellary and the said inmate is not present either in the Bellary Home or at Guntakal Observation Home. The allegations revealed that the Superintendent, Observation Home has committed the offences punishable under Sections 344, 346, 363, 365, 367, 368, 370 and 374 I.P.C. The Station House Officer, II Town P.S. Guntakal is hereby directed to take immediate action by registering FIR in respect of the above incident and submit a report within one week. The SHO is directed to refer 'Eenadu' Telugu daily dt.18.11.99 for more particulars of the incident. This is referred U/S 156 (3) Cr.P.C." Acting upon this, the SHO submitted a report on 30.07.2001. The operative portion of it reads: "On 18.11.1999 it was published in News Paper 'Vaartha' that one juvenile was subjected to bonded labour by the accused by keeping him at his house in Anantapur using his services as child labour seeing it. On the endorsement of LW.1, HC.326 (LW.12) registered a case in Cr.No.62/99 U/Sec.344, 346, 363, 365, 367, 368, 370 & 374 I.P.C. and investigated. LW.8 is witness in this case and he was admitted in Govt. Observation Home for Boys at Guntakal in the year 1998. In the 1st week of 1999 when LW.8 was crying for his parents, the accused took to his house at Anantapur, and used LW.8 as servant in his house without paying any money to LW.8. The accused did not allow LW.8 to go to his parents. Later without the knowledge of the accused LW.8 went to his Village Siriguppa of Bellary District. When it was published in news paper that the accused is using LW.8 as servant in his (accused) house at Anantapur, the accused sent LWs.9 & 10, to Siriguppa and they brought LW.8 from his parents and admitted him (LW.8) in observation home in observation home on 20.11.1999. When it was published in news paper that the accused is using LW.8 as servant in his (accused) house at Anantapur, the accused sent LWs.9 & 10, to Siriguppa and they brought LW.8 from his parents and admitted him (LW.8) in observation home in observation home on 20.11.1999. LW.7 being the chairman of Juvenile Welfare Board, Guntakal visited observation home on 28.10.99 and found LW.8 absent in the home. On enquiry LW.2 informed LW.7 that the accused took LW.8 from the observation home about one month back. LW.7 gave accused press statement stating that the accused is utilising the services of LW.8 as servant in his house. LWs.3 to 6 who are juveniles witnesses about the accused taking LW.8 from the observation home. The accused is released on bail. Bail bond enclosed. Thus, the accused had committed offences punishable U/Sec.344, 345, 363, 365, 368 and 374 I.P.C." However, this was not accepted by the Magistrate, who issued the memo, on the ground that the accused was absconding since the time of offence. Six years thereafter, another charge sheet was filed on 30.07.2007. The only ground on which the first charge sheet was not accepted is evident from the following two paragraphs: "My predicissu filed Charge Sheet before Honourable JFCM Court Guntakal as court showing as asblu date. But the same was returned as what efforts made to arrest of the accused. As per direction of the Honourable JFCM, Guntakal made efforts and arrested the accused at Guntakal II Town P.S. and release accused an anticipatory bail. Those the accused submitted a copy of bail order granted bail Honourable High Court of Andhra Pradesh along with solvencies. The accused was released on bail as per orders of Honourable High Court of A.P., Hyderabad. Thus, the accused had committed offences punishable U/sec.344, 346, 363, 365, 368 & 374 I.P.C." (Note: "true reproduction") The SHO appears to have intended to state that when his predecessor filed the charge sheet earlier showing the accused as absconding, the Court returned the same, by observing "as to why the accused was not arrested" and that the accused has since been arrested, but released on bail. It is in this background, that the petitioner is being tried for the offences under the provisions mentioned above. It is in this background, that the petitioner is being tried for the offences under the provisions mentioned above. A serious objection is raised as to the maintainability of the writ petition stating that the petitioner could, at the best have filed a writ petition at the initial stage and not so many years after the cognizance was taken and the case has progressed to a substantial extent. The objection is no doubt formidable in the ordinary course of things. However, if the proceedings are challenged on the touchstone of very basics of the relevant provisions of law, the High Court cannot refuse relief under Section 482 of the Code or Article 226 of the Constitution of India. In State of Haryana v. Bhajan Lal (1992) Supp (1) SCC 335, the parameters for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India or inherent powers under Section 482 of the Code were enlisted. The same was reiterated from time to time, one such being in Goondla Venkateswarlu v. State of Andhra Pradesh (2008) 9 SCC 613 . The authorities on this aspect can be multiplied. Ultimately, the gist thereof is that in case the proceedings initiated against a citizen alleging crimes under different provisions of law suffer a serious legal infirmity, the accused cannot be required to undergo the ordeal of protracted trial. It is only in civil proceedings that valuable rights accrue to the parties with the progress of proceedings. Such a concept is foreign to criminal law. If an infirmity or serious flaw which has the effect of vitiating the proceedings is noticed even at a belated stage, the response should be that the accused has been subjected to unwanted prosecution or other steps, for such a long period. Conversely, the state cannot be said to have acquired any right vis-à-vis the accused by keeping the proceedings alive for a fairly long time, if they were otherwise untenable. The requirement, however, is that the High Court should be able to arrive at a conclusion, even if the facts mentioned against the accused are taken on their face value. It is keeping this in mind, that the matter is proceeded with. It is too well-known in the field of criminal law that thee are more ways than one, to initiate proceedings in relation to occurrence of a crime. It is keeping this in mind, that the matter is proceeded with. It is too well-known in the field of criminal law that thee are more ways than one, to initiate proceedings in relation to occurrence of a crime. It can be by the police on its own accord, or on receiving a complaint, or by the Court when it also receives complaint, or gains knowledge of the occurrence. Without elaborating the discussion much on this aspect, it can be stated that the provision that enables the police to commence the investigation is Section 156 of the Code, whereas Section 190 of the Code confers power upon a Court to take cognizance of an offence, by itself. It is necessary to extract both the provisions. "156. (1) Any officer in charge of a police station may, without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned. 190. (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 subsection (2), may take cognizance of any offence. - (a) upon receiving a complaint of facts 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 offences as are within his competence to inquire into or try." The manner in which a Magistrate can take cognizance of an offence is provided for under Section 200 of the Code, which reads: "200. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." The manner in which a Magistrate can take cognizance of an offence is provided for under Section 200 of the Code, which reads: "200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the later Magistrate need not re-examine them." A combined reading of these provisions makes it clear that if a Magistrate comes to know the occurrence of an offence, he can either take cognizance of the same by following the procedure prescribed under Section 200 or may simply forward that complaint under sub-section (3) of Section 156 of the Code to the police. While the former is a step, post cognizance, the latter is the one of pre-cognizance. If a complaint is forwarded or the information is passed on by a Magistrate, under Section 156(3) of the Code, the cognizance thereof comes to be taken only when the police submits its report, and he is satisfied that an offence was committed. He cannot forward the matter to the police under Section 156(3) of the Code, once cognizance is taken. The question as to when the cognizance of an offence can be said to have been taken by a Magistrate; occurs frequently, in the realm of criminal law. It is partly because the word cognizance is not defined under the Code, or any other statue and partly because there is specific way or manner, through which alone, cognizance can be taken. It is partly because the word cognizance is not defined under the Code, or any other statue and partly because there is specific way or manner, through which alone, cognizance can be taken. Judicial pronouncements are to the effect that the cognizance of an offence can be said to have been taken, when the Magistrate applies his mind to the facts of the case and takes a decision for proceedings under Sections 200 and other provisions of chapter XV of the Code. There is substantial clarity from the precedents as well as treatises on Criminal Law, on certain facets of the question, as to whether a Magistrate can be said to have taken cognizance of the offence. The first is that, if the Magistrate applied his mind, analysed the facts of the case to a considerable extent, and has decided to initiate steps under Chapter XV of the Code, commencing with recording the sworn statement of the complainant, under Section 200, it can certainly be said that cognizance of the offence has taken by him. It is well settled that if the application of mind is only to a limited extent, and instead of taking recourse to the procedure under Section XV of the Code, he has chosen to refer the matter to the Police under Section 156(3), it cannot be said that cognizance was taken by him. The statement of Law on this aspect by Justice Das Gupta of the Calcutta High Court, way back in the year 1950 in Superintendent & Remembrancer of Legal Affairs, W.B. v. Alani Kumar AIR (37) 1950 Calcutta 437, was quoted with approval by the Hon'ble Supreme Court and other High Courts. Even now it is treated as authoritative. It reads, "What is taking cognizance has not been defined in the Crl.P.C. & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence u/S.190(1)(a), Crl.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding u/s.200 & thereafter sending it for inquiry & report u/s.202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation...u/S.156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence." This was quoted with approval in R.R. Chari v. The State of Utter Pradesh AIR (38) 1951 SC 207 and Tula Ram v. Kishore Singh (1977) 4 SCC 459 and many others. There is also authority for the proposition that if the Magistrate chooses to refer the matter under Section 156(3), he cannot express his mind, nor he should interfere with the functions of police. For all practical purposes, he shall simply forward the complaint or pass on the information to the concerned S.H.O., without any direction as to the nature of steps, to be taken. If a direction is issued by the Magistrate, to the police, to register F.I.R., it amounts to usurpation of the functions of the police by the Magistrate (See Ganesh Dass and others v. State of Kerala 1996 Crl. L.J. 612) and the matter stands taken away from the purview of Section 156(3) of the Code. A critical analysis of the relevant provisions pertaining to the taking cognizance of a crime and the precedents on the subject, becomes necessary, in the peculiar facts of the present case. Such peculiar facts are: a) The sole basis that triggered off the action against the petitioner was a news item published in a daily. There was not any specific complaint, much less an individual figured as a complainant. The letter dated 18-11-1999, addressed by the Magistrate became the complaint, for all practical purposes. In that view of the matter, and for all practical purposes, the Magistrate himself assumed the role of a complainant. b) It was not a case of mere forwarding of a clipping of a news item to the S.H.O., for necessary action. The Magistrate has analysed the matter to such a perfection, that he has identified the provisions of law, which according to him, get attracted vis-à-vis the petitioner. Apart from this exercise, which undoubtedly constitutes "application of mind", in the facts of the case, the Magistrate has ascertained the views of some persons, before he arrived at the conclusion, as to the commission of offence by the petitioner. Apart from this exercise, which undoubtedly constitutes "application of mind", in the facts of the case, the Magistrate has ascertained the views of some persons, before he arrived at the conclusion, as to the commission of offence by the petitioner. In the statement, which he gave to the Investigating Officer, on 22-11-1999, the learned Magistrate stated: "I am working from September 28, 1999 from as JFCM Guntakal I am working. I am 18-11-99 date Vaartha Dina Patrika reading, "Guntakal Pariseelana Gruham baluniche (neglected juvenile) that Superintendent taking bonded labour" after seeing the head line and after reading the news item wherein Juvenile House Board Chairman Prasad Reddy in Observation Home a Boy Veeresh, the Superintendent Bala Prasad in Anantapur in his house is taking labour and that was the news item. I am Juvenile Court Magistrate and also responsible Juvenile Welfare Board Chairman given paper statement prima facie offence considered and 10-20 A.M., after discussing with lawyers, Eenadu paper,(reference may be to the correspondent) and in the matter to investigate and I have issue official memo typed and sent on your enquiries I have informed". (Underlining by this Court) c) Even where cognizance is taken under Section 190 of the Code, by a Magistrate, he would only express the views in terms that constitute allegations. In the instant case, the matter was taken a step further, and in the letter, the learned Magistrate observed, "the allegations revealed that the Superintendent, Observation Home has committed the offences punishable under Sections 344, 346, 363, 365, 367, 368, 370 and 374 I.P.C". Such an observation could have been possible, only after full-fledged trial. Whenever a matter is referred under Section 156(3) of the Code, the Police is given full liberty to undertake investigation. On verification of the matter, the S.H.O., can decide, whether or not to register F.I.R., though the Magistrate has the power to direct investigation, if a report is submitted by the police, stating that no offence was committed. In this case, the charge-sheet submitted by the police, in the year 2001 was returned by the Magistrate only on the ground that the accused was still at large. It was six years thereafter, that the C.C. No.345 of 2007 was registered and thereby formal cognizance was taken. In this case, the charge-sheet submitted by the police, in the year 2001 was returned by the Magistrate only on the ground that the accused was still at large. It was six years thereafter, that the C.C. No.345 of 2007 was registered and thereby formal cognizance was taken. In the light of these peculiar facts, a small facet needs to be added, of what has already been stated by the Court so far, as to taking of cognizance. In understanding as to whether a Magistrate has taken cognizance of an offence application of mind by him to the facts of the case assumes significance. However, a distinction was made, to the effect that, if even after application of mind, he has chosen to refer the matter under Section 156(3) of the Code, cognizance cannot be said to have been taken. Where, however, the application of mind and subsequent steps, such as examination of the person concerned, though not, in a formal manner is referable or akin to an exercise under Section 200 of the Code, cognizance can certainly be said to have been taken under Section 190. If for any reason such a conclusion is not possible, this much, however, can be said that the reference of the matter under Section 156(3) is vitiated, be it, in the context of issuing a specific direction to the police, or prejudging the issue albeit, to a limited extent. In this case, the Magistrate; a) Directed the S.H.O., to register F.I.R, b) had consultations with the lawyers and the press reporters and thereby forming an opinion, and c) expressed final opinion, that the petitioner committed offences. There is sufficient material to suggest that the Magistrate in this case has acted under Chapter XV. Whenever a private complaint is received by a Magistrate, he is placed under obligation to record the sworn statement of the complainant. Whatever may be the extent of application of mind to the facts of the case, recording of statement is treated almost as a conclusive step, in the direction of taking cognizance. In case the complaint is filed by an individual, the compliance under Section 200 of the Code would be, when the person appears before the Magistrate, and his statement is recorded. However, the basis for taking cognizance of an offence by a Magistrate is not confined to the complaint submitted by a complainant alone. In case the complaint is filed by an individual, the compliance under Section 200 of the Code would be, when the person appears before the Magistrate, and his statement is recorded. However, the basis for taking cognizance of an offence by a Magistrate is not confined to the complaint submitted by a complainant alone. The information received by the Magistrate through any other source can also constitute the basis. If the source of information to a Magistrate is not complaint or a representation by an individual, it is difficult to expect the recording of a statement of any particular person under Section 200 of the Code. On that account, it cannot be said that it is impossible for the Magistrate to take cognizance. The deliberation, which the Magistrate may have with the persons, who can throw some light upon the occurrence of offence; can certainly be construed as a step, referable under Section 200. That is what exactly has happened in this case. Soon after the Magistrate read the news item, he has discussion with the concerned reporter, as well as some advocates, who, according to him, have knowledge about the matter. Though the sworn -statement as such was not recorded; in fact, could have been recorded; the discussion undertaken by him with the persons concerned is referable to Section 200 of the Code and, thereby the cognizance was taken by the Magistrate himself. In such an event, reference of the matter to the Station House Officer, under Section 156(3), was impermissible. An examination of the developments, that have taken place from time to time, in this case, would disclose that the petitioner has been subjected to illegality at various stages. In the process of administering juvenile justice, the petitioner was very much in touch with the learned Magistrate, who was also acting as the Presiding Officer of the Juvenile Court. Instead of ascertaining the version of the petitioner, the learned Magistrate took it as true, added his judicial power to it, and rendered the function of the police, almost nugatory. When ultimately the police has taken steps, as directed by the Magistrate, and not on its own, and submitted a charge-sheet, the Court expressed its dissatisfaction and unhappiness on the sole ground that the petitioner was not arrested by that time and refused to take cognizance. When ultimately the police has taken steps, as directed by the Magistrate, and not on its own, and submitted a charge-sheet, the Court expressed its dissatisfaction and unhappiness on the sole ground that the petitioner was not arrested by that time and refused to take cognizance. It was only after the petitioner was arrested and after expiry of six years, from the date of first report that the cognizance of the matter was taken. The whole episode reflects a clear case of misapplication of the provisions of the Code, violation of fundamental right guaranteed under Article 21 of the Constitution of India and resultant injustice to the petitioner. This Court is of the view that the facts of the case clearly fit into the parameters stipulated by the Hon'ble Supreme Court, where under a High Court can quash the proceedings against an accused. The writ petition is accordingly allowed, as prayed for, and the proceedings initiated against the petitioner in C.C.No.345 of 2007 are quashed. The miscellaneous petition in this Writ Petition also shall stand disposed of. There shall be no order as to costs.