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2012 DIGILAW 726 (AP)

K. Venugopal v. K. Venkata Mandadi

2012-08-16

R.KANTHA RAO

body2012
ORDER A1 filed the Criminal Petition No.9232 of 2009, A2 to A9 filed the Criminal Petition No.2285 of 2010, since common question of law and fact would arise for consideration, they are disposed of by a common order. 2. These two criminal petitions are filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings against the petitioners in CC No.517 of 2009 on the file of the Judicial First Class Magistrate, Special Mobile Court, Tirupati, Chittoor District. 3. I have heard Sri P. Vidya Sagar, learned Counsel appearing for the petitioners and the Additional Public Prosecutor representing the State/respondent No.2. 4. For the convenience sake, I would like to refer the parties as the complainant and the accused. 5. The brief facts essential for disposal of the criminal petitions may be stated as follows: The complainant has a civil dispute with A2 to A10 in relation to a landed property of an extent of Ac.01.01 cent in Survey No.415/3 in Nallarallapally Village, Chittoor District and a tamarind tree is situate therein. The first accused, who was the Sub-Inspector of Police in the G.D. Nellore Police Station within which jurisdiction the property in dispute is situate. It was alleged that the first accused got himself personally involved in the property dispute and was supporting A2 to A10. 6. According to the complainant on 24.12.2005 on the investigation of A1, A2 to A10 trespassed into the disputed land and destroyed the redgram and horsegram crop allegedly raised by the complainant in the said land worth Rs.20,000/- and made an attempt to cut and carry away the green manure and timber trees situate in the land. It was further alleged that A2 to A10 highhandedly and illegally on 1.1.2006 with the knowledge of A1, entered into the land with deadly weapons and took away the crusher motor worth Rs.5,000/-. It was also alleged that A1 forcibly took the sons of the complainant viz., K. Hanumanthu Mandadi and K. Balakrishna Mandadi to the police station, detained them by hanging slates in their necks with a view to shame them in public. In that regard, a Writ Petition No.27073 of 2005 was filed in this Court seeking production of the sons of the complainant. The complainant also filed OS No.12 of 2006 on the file of the II Additional Junior Civil Judge, Chittoor and obtained temporary injunction against the accused. In that regard, a Writ Petition No.27073 of 2005 was filed in this Court seeking production of the sons of the complainant. The complainant also filed OS No.12 of 2006 on the file of the II Additional Junior Civil Judge, Chittoor and obtained temporary injunction against the accused. The learned Magistrate after recording the sworn statement of the complainant and examining his witnesses took the cognizance of the case against the accused under Sections 119, 427 and 447 IPC. The present quash petitions are filed to quash the proceedings in CC No.517 of 2009 on the file of the Judicial First Class Magistrate, Special Mobile Court, Tirupathi, Chittoor District. 7. The learned Counsel appearing for the petitioners would contend that basing on the reports lodged by A2, Krishna Mandadi, Al, who was the Sub-Inspector of Police registered cases against the complainant and his relatives in Crime Nos.68 of 2003, 53 of 2005 and 16 of 2006 of G.D. Nellore Police Station, as a retaliatory measure, the complainant filed the present complaint against all the accused, more particularly to harass the first accused. The learned Counsel would further submit that the allegations levelled against the accused in the complaint do not constitute any criminal offence, the first accused being a public servant shall not be prosecuted without any sanction from the competent authority, the Writ Petition No.27073 of 2005 filed by the complainant was disposed of by this Court on 13.10.2006 holding that the sons of the first respondent were released on bail after their production before the learned IV Additional Judicial First Class Magistrate, Chittoor, and nothing survives in the writ petition. According to the learned Counsel, continuance of the case against any of the accused is abuse of process of law and would result in miscarriage of justice. Therefore, he seeks to quash the criminal proceedings initiated against the accused. 8. On the other hand, the learned Additional Public Prosecutor representing the State would contend that the allegations levelled in the complaint petition have been spoken to by the complainant before the Magistrate in the sworn statement which is supported by the witnesses examined by him, the truth or otherwise of the matter has to be decided in the course of the trial before the learned Magistrate and there are no valid grounds to quash the proceedings. 9. 9. To decide the question as to whether the criminal proceedings instituted against the accused can be quashed or not, the nature and extent of the powers of this Court under Section 482 Cr.PC have to be examined. The crucial question is whether the allegations are frivolous and vexatious, whether they constitute any criminal offence, such proceedings if allowed to continue before the trial Court would result in abuse of process of Court and miscarriage of justice can be examined and scrutinized by this Court. In other words, merely because certain allegations have been made against the accused persons in the complaint petition, or in the police statements under Section 161 Cr.PC whether this Court is left with no option except allowing those allegations to be tried and decided by the trial Court. 10. In Central Bureau of Investigation v. Ravi Shankar Srivatsava, IAS and another, (2006) 7 SCC 188 , wherein it was held as follows: "In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, mayor may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained." "it would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint; exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings." 11. In B. Suresh Yadav v. Sharifa Bee and another, (2007) 13 SCC 107 , the Supreme Court held as follows: "In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so." 12. In Priya Vrat Singh and others v. Shyam Ji Sahai, (2008) 8 SCC 232 , the Supreme Court held as follows: "The parameters for exercise of power under Section 482 have been laid down by this Court in several cases." "19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely. (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle 'quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising power under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." 13. In State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 (1), the Supreme Court provided certain guidelines. Guideline No.7 is as follows: "Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 14. In G. Sagar Suri and another v. State of U.P. and others, 2000(1) ALD (Crl.) 362 (SC) = (2000) 2 SCC 636 , wherein the Supreme Court held as follows: "Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. The Supreme Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. For the accused it is a serious matter. The Supreme Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial." 15. The present case is required to be examined in the light of the principles laid down by the apex Court in the above referred judgments. This case basically relates to a civil dispute in respect of which the complainant filed as No.12 of 2006 on the file of the II Additional Junior Civil Judge, Chittoor. The suit is for permanent injunction. It was averred in the plaint that on 24.10.2001 and 1.1.2006 the defendants 1 to 6 and their men, agents and followers attempted to dispossess the plaintiff/complainant from the plaint schedule property. The incident mentioned in the complaint petition allegedly took place on 24.12.2005. It is alleged in the complaint that on the instigation of A1, A2 to A10 trespassed into the land destroyed the redgram and horse gram crop worth Rs.20,000/- and tried to carry away the same and again on 1.1.2006 with the knowledge of A1, A2 to A10 high-handedly took away the crusher motor worth Rs.5,000/-. The complaint allegations viz., damaging the standing crop and taking away the crusher motor were not mentioned in the plaint. From the way in which the allegations were levelled against A1, he was also physically present when the above acts were committed by A2 to A10. But, there is no reference to A1 at all in the plaint. The complaint allegations viz., damaging the standing crop and taking away the crusher motor were not mentioned in the plaint. From the way in which the allegations were levelled against A1, he was also physically present when the above acts were committed by A2 to A10. But, there is no reference to A1 at all in the plaint. From this, it has to be necessarily understood that the complaint is filed as an afterthought to settle the personal scores against the accused. This Court while exercising its powers under Section 482 Cr.PC is under a duty to examine whether the complaint is prompted by mala fides, though it may not be required for the Court to appreciate the evidence as that of the trial Court. 16. In WP No.27073 of 2005, the Division Bench of this Court called for the report of the Superintendent of Police to find out whether the detenues therein were kept in wrongful confinement and put to torture. The Superintendent of Police after making an enquiry submitted a detailed report stating that the detenues were not detained illegally nor were subjected to ill-treatment and they did not sustain any injuries. It was revealed in the said writ petition that the alleged detenues were produced before the Magistrate in connection with certain crimes and were subsequently released on bail. Recording all these facts, the Division Bench closed the writ petition filed seeking writ of habeas corpus. Most crucial aspect in this case is when a civil dispute is pending between the parties wherein each party is contending that it is in possession of the property and raised the crop and a civil suit had also been filed in respect of the said civil dispute. If any act of damage and carrying away the crop allegedly occurs in the schedule property, whether the parties can be permitted to file criminal cases one against the other. It is true that merely because a civil dispute is pending, criminal prosecution is not barred in respect of any criminal offence committed in the disputed property. But, when the act allegedly committed intentionally linked with the property dispute, the remedy open to the parties is to seek the redressal in civil action, but they should not resort to file criminal cases against each other. But, when the act allegedly committed intentionally linked with the property dispute, the remedy open to the parties is to seek the redressal in civil action, but they should not resort to file criminal cases against each other. In the instant case, as per the averments in the plaint filed by the complainant there was absolutely no allegation regarding the damage caused to the standing crops or commission of theft of any property existing in the plaint schedule land. It was only averred in the plaint that some of the accused attempted to trespass into the plaint schedule property in the suit, absolutely there was no reference to A1, but in the complaint an allegation was made against A1 as if he was physically present when the acts of damage and the theft were committed by some of the accused. 17. Thus, if the genesis of the complaint petition is examined in the light of the civil dispute pending between the parties, it is obvious that the criminal case is filed against the accused as a measure of harassment. Insofar as A1 is concerned, since his involvement in the offence alleged on 24.12.2005 was not at all mentioned in the civil suit, it has to be certainly understood that he was unnecessarily involved in this case might be for his registering cases against the close relatives of the complainant on the report lodged by A2. Even against the remaining accused also the incident mentioned in the complaint petition is at variance. In the facts and circumstances of the case, I am of the considered view that the remedy of the complainant is only a civil action, and filing the criminal case certainly is nothing but abuse of process of law which ultimately results in miscarriage of justice. This Court has to exercise the jurisdiction under Section 482 Cr.PC to prevent abuse of process of Court and miscarriage of justice. For that purpose, this Court is not supposed to evaluate the evidence, but can certainly go into the question as to whether the complaint is ex facie false or whether it is not maintainable. 18. For the foregoing reasons, I am thoroughly convinced that the complaint is filed to settle his personal scores with the accused by inventing an incident. For that purpose, this Court is not supposed to evaluate the evidence, but can certainly go into the question as to whether the complaint is ex facie false or whether it is not maintainable. 18. For the foregoing reasons, I am thoroughly convinced that the complaint is filed to settle his personal scores with the accused by inventing an incident. If the prosecution of this kind is allowed to continue, it will result in miscarriage of justice and it is nothing but abuse of process of law. I find any amount of force in the contention urged by the learned Counsel appearing for the petitioners that the criminal proceedings are liable to be quashed. 19. Consequently, the entire proceedings in CC No.517 of 2009 on the file of the Judicial First Class Magistrate, Special Mobile Court, Tirupati, Chittoor District are hereby quashed. The criminal petitions are allowed.