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2014 DIGILAW 1275 (AP)

Bommisetty Varchala v. State of Andhra Pradesh

2014-10-14

B.SIVA SANKARA RAO

body2014
ORDER : B. Siva Sankara Rao, J. This Criminal petition, under Section 482 Cr.P.C., is filed seeking to set aside the opinion given by the Senior Assistant Public Prosecutor (Administration), Ongole, Prakasam District in Crime No.2 of 2011 of H.M. Padu Police Station, Prakasam District. 2. Objection of the office is overruled against maintainability of the application under Section 482 Cr.P.C. 3. Heard learned counsel for the petitioner. 4. The criminal petition is disposed of at the stage of admission by giving liberty to the petitioner herein, who got a right, if she wants to challenge the final report filed by the police not in the form of charge sheet, to file protest petition for consideration of the same on merits to the Court competent to take cognizance. It is leave about the earlier expression of this Court (another Bench) in W.P. No. 39478 of 2013, dated 05.03.2014, in Bethalam Subba Rao v. the Superintendent of Police (Urban) Guntur District and others, holding that there are no guidelines empowering the Public Prosecutor to give opinion to the investigating officers, for filing final report, once police filed final report, it is either in the form of charge sheet or even referred report, the learned Magistrate or the special Court concerned has to peruse entire investigation material to decide whether there is prima facie case to take cognizance and proceed with, from any prima facie accusation against all or any of the accused for the offence covered by the material under section 190 Cr.P.C. or to close by accepting the report. Needless to say, if at all to accept the referred report to close t h e de facto complainant also to be given notice and be heard; besides independent right of the de facto complainant to file protest against the final referred report of the investigating officer, in seeking to take cognizance therefrom, after recording the statements of the witnesses being produced by the de facto complainant, besides the de facto complainant herself, from such sworn statement if make out a case to proceed as a private complaint case as contemplated by Sections 200 to 203 Cr.P.C. with reference to Section 190 Cr.P.C. under Chapter XV of Cr.P.C., the law is well settled in this regard. 5. 5. The Apex Court in Nupur Talwar v. Central Bureau of Investigation observed that even the police, where the CBI, filed a closure report from the investigation material, if Magistrate found prima facie accusation to proceed with against whom that investigation material is available, the learned Magistrate can take cognizance under Section 190 Cr.P.C. and once taken cognizance to hear before framing charges, after appearance and supply copies to the accused and as such unless the Magistrate's taking cognizance despite referred report of the I.O. is shown perverse and unsustainable, Superior Courts cannot interfere much less by invoking Section 482 Cr.P.C. 6. The other expression is Moti Lal Songara v. Prem Praksh @ Pappu and Another, wherein particularly at paras 17 and 18 held that no doubt it is the duty of the Court to consider the material and if any order is obtained for taking cognizance by suppression of the material facts, Court may suo-moto call for that order and set aside by invoking Section 190 Cr.P.C. The Magistrate got absolute powers, even police filed referred report under Section 173 Cr.P.C., for taking cognizance for any of the offence against accused under Section 190 Cr.P.C., the Magistrate is not bound to accept final report filed by the investigating agency and in taking cognizance and against the person facing accusation though exonerated by the investigating agency as it is the duty of the Court to see that the victim as well as the accused must get justice before the Court. 7. The other expression of the Apex Court in Ajay Kumar Parmar v. State of Rajasthan wherein also it was observed that by scheme of the Code of Criminal Procedure when the Magistrate reaches conclusion that the facts alleged in the report filed by the police make out an offence to take cognizance under Section 190 Cr.P.C., he can take cognizance and where even it appears to him from the material that case is triable by the Court of Sessions, on taking cognizance, summon and supply of copies to the accused, he can proceed under Section 209 Cr.P.C., even the final report filed by the police not stated that the offence is triable by Court of sessions. 8. 8. It is further observed that the Magistrate while dropping the proceedings against the accused from the referred report filed by police, it is mandatory to hear the complainant or informant by issuing him notice and come to a fresh conclusion therefrom. It is to say without even hearing the victim or the de facto complainant, as the case may be, even police filed referred report, from the application of mind by Magistrate, material disclose the offence to take cognizance against any of the accused, it is the duty of the Magistrate within his power to take cognizance and even if he wants to accept the referred report filed by police to drop the proceedings by not choosing to take cognizance, it is also the duty of the Magistrate to hear victim or de facto complainant and come to fresh conclusion. 9. It is to say even at that stage, protest petition can be filed by the de facto complainant or the victim, as the case may be, on which the Magistrate may proceed with as private complaint procedure to take cognizance. On coming to the present case, the learned Magistrate did not choose to take cognizance from the police investigation material under Section 190 Cr.P.C. Thus when the law is crystal clear, there is nothing to keep the present proceedings under Section 482 Cr.P.C. pending but for to give disposal, giving liberty to the petitioner/de facto complainant to approach the learned Magistrate concerned, where referred report filed by police within one week from the date of receipt of a copy of this order to submit protest petition, to consider by Magistrate for taking cognizance on the final report or not if not taken any decision, under Section 190 Cr.P.C. or if not chosen to take cognizance and want to drop the proceedings, by considering protest petition of the petitioner/de facto complainant as private complaint case according to law under Sections 200 to 203 with reference to Section 190 Chapter XV of Cr.P.C. 10. In the result, the petition is disposed of at the admission stage accordingly.