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2018 DIGILAW 797 (AP)

K. S. Sudarshan Reddy v. State of A. P.

2018-11-01

B.SIVA SANKARA RAO

body2018
ORDER : B. SIVA SANKARA RAO, J. 1. The petitioner is A-2 of Cr. No. 227 of 2016 of Chinna Chowk Police Station of Y.S.R. Kadapa district registered for the offences punishable under Section 417, 420, 313, 496, 354-D and 506 IPC. The 2nd respondent is the de facto-complainant. 2. The original report, dt. 14-10-2016 in registration of the crime speaks that the A-1-Chandra Obula Reddy @ Nani is son of Chairman of KSRM College, who lured the defacto-complainant with a proposal of love and ultimately as per the first instance on 30-04-2015 tied talibottu (Thottathil) around her neck by saying as marriage witnessed by both side elders. Again as per the second incident on 2-11-2015, he with some of his relatives came to her house took her and her parents and relatives also to Tirupati and celebrated the marriage in a temple, though she could not say who are the persons present for not recognized of among the husband's relatives. She further stated the later her husband taken her to the family fold and they resided at D. No. 8-3-234-5-18 and 519-A, LN Nagar, Yousufguda, near Green Bavarch, Hyderabad for about 8 months and now and the her in-laws were visiting their marital house and also blessing the couple. It is further stated that later there is a change for unknown reasons from her in-law's family and they started abusing her unnecessarily and her husband abandoned her alone in that flat and when she enquired she came to know that her in-laws refused her and turned the mind of her husband against her and insisted him to desert her and she came from normal family and not equal to their family status. She further stated that if they showed her as their daughter-in-law, their reputation will fall and some property disputes will arose in their family. She further stated that if they showed her as their daughter-in-law, their reputation will fall and some property disputes will arose in their family. So far as the 3rd incident in the prosecution case concerned, it is by those reasons her in-laws K. Sivananda Reddy and K. Rajeshwari and some of their relatives hid her husband at somewhere and since then she has not seen him and she does not know where he was hidden by them and later herself along with her parents visited her in-laws house (A-l's house) at Kadapa and requested them to show her husband and accept her as their daughter-in-law but they did not heed her cries and threw her outside the house and threatened that they are influential people in the society and of rich family and they have kept her husband at some place and they are not going to allow her to have love with her husband. Her in-laws also stated that if she again visits to their house, they will kill her and bury under ground and can manage police as well as Court without framing any charge against them and further stated that she will not suit their family and suggested her to forget her husband and insulted to go away by taking some amount and asked her to do anything if possible. Even she begged them not to do injustice to them and not to separate from her husband as her husband is loving her, and requested them to give a chance to talk to her husband, on that they allowed her to talk through their mobile, on that when she talked to her husband requesting him to come for her, but he replied that he is not interested in her and he married her just for sexual enjoyment only and she will not become a better half to him and further threatened her to go away by taking money from his parents and he is at safe place and not going to come back and planning to marry some other person and told that they can do all that they could do but nothing is going to happen against him and he belongs to a well settled family and politically influential family. According to her, her husband and parents-in-law cheated her in the name of love and marriage and spoiled her life. According to her, her husband and parents-in-law cheated her in the name of love and marriage and spoiled her life. Her husband also did miscarriage with her forcibly without any concern by using some unknown pills, therefrom she requested to enquire into the matter and trace out location of her husband and hand over to her. 3. She signed and put her telephone number and another number of one Nageshwari. She again written insofar as the present petitioner-A-2-K. Sudarshan Reddy-Advocate by profession which reads as "when my parents and family members went to K. Sivananda Reddy gari house, Lawyer K. Sudarshan Reddy, used vulgar language on my mother and me. He giving wrong directions and bad rumours on me. Please take action one him. " Again she put her signature. There is endorsement underneath it only as 'received on 14-10-2016 at 3.15 p.m.', registered the same as Cr. No. 227 of 2016 for the offences under Sections 420, 313, 509 IPC read with 34 IPC. 4. The police after investigation filed the final report in the form of chargesheet so far as against others other than the petitioner-K. Sudharshan Reddy, advocate. The final report of the police refers that earlier memo filed by police on 29-04-2017 in the Court saying during the investigation L.W. 1-Putha Vasanthi Reddy/the defacto-complainant, L.W. 2-Putha Nageswari and L.W. 3-Putha Sravanthi Reddy were examined and recorded their statements in detail and prima facie case has been proved against the accused. On 18-1-2017 at 7.30 a.m. arrested the accused in front of his house and sent him for judicial custody (it appears only for A-1). Further during the course of investigation, on 23-1-2017 examined L.W. 8-Malisetty Sekhar, L.W. 9-Ramireddi Jayarami Reddy and L.W. 10-J. Vinod Reddy and L.W. 11-Guduru Sailaja and recorded their statements. According to their version, accusation against A-2-Sudarshan Reddy-the petitioner herein has not been proved as he was not present during the occurrence. Further he is engaging at Chennai on that date along with his driver as per the call data existing in cell number. It is therefrom asked to delete the petitioner-A-2's name from the list of accused. Thereby final report was filed only against A-l-K. Chandra Obula Reddy @ Nani-husband of the defacto-complainant. 5. The learned Magistrate from the police final report so far as the A-1 is concerned from the deletion of name of A-2 mentioned in the final report dt. It is therefrom asked to delete the petitioner-A-2's name from the list of accused. Thereby final report was filed only against A-l-K. Chandra Obula Reddy @ Nani-husband of the defacto-complainant. 5. The learned Magistrate from the police final report so far as the A-1 is concerned from the deletion of name of A-2 mentioned in the final report dt. 29-4-2017, allotted PRC No. 27 of 2017, taken cognizance for the offences supra so far as against the A-1. 6. It is therefrom the defacto-complainant filed a protest petition in Crl. M.P. No. 3155 of 2017 on 12-10-2017. 7. The core in the contentions of the protest petition particularly at para 3 so far as the A-2 in raising protest for not taking cognizance by deleting the A-2 concerned is that he threatened by saying as: XXX 8. It is therefrom the learned Magistrate allotted CFR No. 5042 of 17, dt. 12-10-2017 and recorded sworn statements of the defacto-complainant-L.W. 1, her sister L.W. 2-Nagashwari and her mother-L.W. 3 and passed the order in taking cognizance in ordering to issue summons by following procedure under Sections 200 to 204 Cr.P.C. The relevant portion in paras-12 to 14 out of the order running in 9 pages reads as follows:- "12. On perusal of Section 161 Cr.P.C. statements of L.Ws. 1 to 6, it clearly shows that when the defacto-complainant along with her mother and sister went to the house of accused No. 1, an Advocate by name K. Sudarshan Reddy, (accused No. 2) threatened them with dire consequences and also abused them in filthy language. Basing on the above statements, the prima facie case proved that the Accused No. 2 also participated in the offence along with Accused No. 1. Further, as per sworn statements of witnesses 1 to 3, the offence is made out against Accused No. 2 for the offence u/sec. 506, 509 of IPC and hence, and the Protest Petition of the Defacto complainant stands good. 13. In the above stated circumstances, as the prima facie offence is made out against accused No. 2 for the offences u/sec. 506, 509 IPC, the Court is of opinion that the accused No. 2 is to be chargesheeted as accused No. 2 in the main case i.e. PRC No. 27 of 2017 and accordingly, issue summons to the accused No. 2 14. 506, 509 IPC, the Court is of opinion that the accused No. 2 is to be chargesheeted as accused No. 2 in the main case i.e. PRC No. 27 of 2017 and accordingly, issue summons to the accused No. 2 14. In the result, this petition is allowed and accordingly, accused No. 2 is added and issue summons to the accused No. 2 namely K. Sudarshan Reddy." Thus the learned Magistrate has taken cognizance so far as the petitioner-A-2 is concerned only for the offences punishable under Sections 506 and 509 IPC and ordered to issue summons to him by allowing the petition accordingly and by adding A-2 to the PRC No. 27 of 2017. 9. Undisputedly, as on that date, PRC No. 27 of 2017 proceedings are pending under Section 209 Cr.P.C. and not committed to the Court of Sessions from the earlier cognizance taken so far as against the A-1 concerned for the offences punishable under Sections 417, 420, 313, 496, 354-D and 506 IPC. 10. Impugning the learned Magistrate's order, in revision Crl. R.P. No. 29 of 2018 was filed by the A-2 against adding him from the protest petition and the learned Judge, Family Court-cum-Sessions Judge in the revision confirmed the order of the learned Magistrate with observations particularly in paras-13 and 14 as follows:- "13. Coming to the aspect of jurisdiction u/sec. 178(d) of Cr.P.C. wherein it is provided as follows:- Section 178(d) of Cr.P.C: where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas." As can be seen from the complaint filed by the defacto-complainant in continuation of her grievances against the accused No. 1 when the parents of the accused No. 1 were approached at their house by the defacto-complainant party it is alleged that the accused No. 2 was present and resorted to commit the offence as complained by her. It is no doubt true that the case was registered by Chinna Chowk police within whose jurisdiction the defato-complainant resides and that the offence said to have been committed by accused No. 2 at the house of one K. Sivanandha Reddy that falls within the jurisdiction of I town Police Station, Kadapa and comes within the territorial jurisdiction of another Court. As the law provides for maintaining a complaint involving several acts done in different localities that attracts that jurisdiction of a Court over any of such areas. I do not find any flaw in registering the complaint against the accused No. 2 by Chinna Chowk Police. Even otherwise, the present revision petition is in respect of the orders passed in protest petition, but not against registering the offence by the Chinna Chowk police. 14. Viewed from any angle, I do not find material and serious lapses in the orders passed by the Magistrate in Crl.M.P. No. 3155 of 2017, dt. 16-3-2018 that allowed the protest petition and included the revision petitioner as accused No. 2 to be tried along with accused No. 1 for the case in Cr. No. 227 of 2016 which is taken cognizance and registered as P.R.C. No. 27 of 2017. In other words, the revision petition is to be dismissed. 11. Same is the impingement herein by the present petitioner by the A-2-petitioner. The 2nd respondent is the defacto-complainant. The 1st respondent is the State. 12. Heard both sides in detail and perused the entire material on record. 13. The learned counsel for the defacto-complainant drawn attention of the Court on the scope of Sections 173 and 190 CrPC regarding judicial application of mind for taking cognizance to the 2JB expression of Apex Court in Dr. Mrs. Nupur Talwar v. C.B.I. Delhi 2012 (2) ALT (Crl.) 207 (SC) : AIR 2012 SC 847 particularly from para-26 referring to the earlier 3 Judge Bench expression in M/s. India Carat Private Limited v. State of Karnataka AIR 1989 SC 885 particularly from para 26 in saying the learned Magistrate can take into account the statements of the witnesses examined during investigation by police in taking cognizance of the offence complained of and order the issue of process to the accused and beyond that Section 190(1)(b) CrPC no way lays down that Magistrate is bound by the opinion of the investigating officer, for the Magistrate can differ with the conclusion of the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case if he thinks fit in the exercise of his power and direct to issue process to the accused. 14. 14. The earlier 3 Judge Bench expression of the Apex Court in Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997) 2 SCC 397 where at para 14 on the scope of Section 173 and taking cognizance therefrom referring to the expression State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 held "it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out from proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such offence has been made out and if taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a chargesheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court to proceed further in the matter. Thus it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not." 15. In fact, law is clearly settled by the 5 Judge Bench expression of the Constitution Bench of the Apex Court in Dharampal Singh v. State of Haryana (2014) 3 SCC 306 : AIR 2013 SC 3018 . In this case by referring to the catena of expressions including of the Constitution Benches it was held that the opinion expressed by the police in the final report under Section 173 Cr.P.C. is not binding on the Magistrate but by independent application of his mind to take cognizance if any for any of the offence against any of the accused. It is also said that once the Magistrate not chosen to defer with the police opinion, the defacto-complainant got right to raise a protest against it. 16. It is also said that once the Magistrate not chosen to defer with the police opinion, the defacto-complainant got right to raise a protest against it. 16. Thus merely because PRC number is allotted as 27 of 2017 from the police final report filed so far as against the A-1 by not charging A-2 and even the trial Magistrate did not defer with the police opinion to take any cognizance against the A-2 and accepted the final report in so allotting said PRC "Number and taking cognizance under Section 190 Cr.P.C. for the offence against the A-1 concerned that is not the be all much less to take away the right of nonparty before that Court at that time i.e. the victim and defacto-complainant as the case may be. The expression clearly speaks right of protest to raise by the defacto-complainant always available that arises after intimation of the final report result by the police and duty of the Magistrate also to intimate to the defacto-complainant to raise protest if any, if chosen, to accept the police final report and not chosen to defer. 17. Once such is the case the mere allotment of the PRC Number by taking of cognizance is not the be all for proceeding with the protest petition much less to contend the Court is powerless to proceed on the protest petition of the defacto-complainant. 18. No doubt, in Dharampal (supra), it is categorically laid down that once a cognizance was taken by the Magistrate under Section 190 Cr.P.C. from the police final report, there is no question of second cognizance under Section 193 Cr.P.C. by the Court of Sessions as cognizance arises only once whether under Section 190 Cr.P.C. in the pre-committal stage for proceedings from the police final report or private complaint or after committal under Section 193 Cr.P.C. by the Court of Sessions in allotting the Sessions Case Number. From this, so far as the first cognizance taken against the A-1 by allotting PRC No. 27 of 2017 concerned that is final. Once such is the case on the protest whether the earlier cognizance taken can be reopened by taking a second cognizance is the issue herein. 19. From this, so far as the first cognizance taken against the A-1 by allotting PRC No. 27 of 2017 concerned that is final. Once such is the case on the protest whether the earlier cognizance taken can be reopened by taking a second cognizance is the issue herein. 19. The right of the defacto-complainant to raise protest is different from once cognizance taken on the police final report by its acceptance against some of the accused for some of the offences that if asked to be reopened whether can be reopened is different. There is no such right is clear from the above law. Once such is the case, only the issue to consider is whether the A-2 can be added in PRC No. 27 of 2017 by reopening the earlier cognizance order taken up. It cannot be but for to allot another PRC number and commit to the Sessions Court to proceed in one Sessions Case from two committal orders which are outcome of one original crime and one investigation. Said practice is also in vogue where PRC proceedings split up for some of accused in abscondence or where during investigation for accused in abscondence mentioned as separate charge sheet being filed after apprehension and arrest and so filed later. 20. Here that is not the be all and end all. As discussed supra the private PRC proceedings on the protest raised by the defacto-complainant is by following the private complaint procedure under Section 200 to 204 Cr.P.C. The Magistrate thereby may take cognizance independently. It was then, if at all that case is triable by the Court of Sessions allot PRC number and if triable by the Magistrate to retain by him by allotting only Calendar Case number. If such is the case, in the case on hand, from the order of the learned Magistrate in Crl.M.P. No. 3155 of 2017 referred supra in taking cognizance against the A-2 for the offences under Sections 506 and 509 Cr.P.C. concerned those are triable by the learned Magistrate and not by Court of Sessions per se it was also for the fact that the offences taken cognizance against the A-1 triable by Court of Sessions to commit u/sec. 209 Cr.P.C. are different to the offences taken cognizance triable by the Magistrate against A-2. 21. 209 Cr.P.C. are different to the offences taken cognizance triable by the Magistrate against A-2. 21. For more clarity the Section 209 Cr.P.C. with sub-section (a) requires to consider which reads as follows:- Section 209: Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made. 22. Thus there is some application of judicial mind for taking cognizance on the private PRC under Sections 200 to 202 Cr.P.C. having rejected under Section 203 Cr.P.C., to issue summons or warrant under Section 204 Cr.P.C. there if the accused is triable by the Magistrate allotting PRC number is not known to law from the cognizance taken under Section 190 Cr.P.C. but for a case triable by Court of Sessions to allot PRC number from the cognizance taken under Section 190 Cr.P.C. read with Section 209 Cr.P.C. to commit to the Court of Sessions that is the purport of what is reproduced from the relevant portion of 209 Cr.P.C. supra. As the questions of committal arises if the offence for which taken cognizance is triable by the Court of Sessions as discussed supra from the order of the learned Magistrate in Crl. M.P. No. 3155 of 2017, the cognizance taken is for the offences under Sections 506 and 509 IPC are not triable by the Court of Sessions and invoking Section 209 Cr.P.C. in question to commit to the Court of Sessions does not arise. No doubt the independent cognizance against the A-2 is different from the independent cognizance against the A-1 in allotting PRC No. 27 of 2017 from the cognizance order to commit to the Court of Sessions for the offences taken cognizance against the A-1. Then once the offences against A-2 triable by the Magistrate, the question of committing much less by adding in the earlier PRC proceedings against the case of A-1, does not arise. 23. Then once the offences against A-2 triable by the Magistrate, the question of committing much less by adding in the earlier PRC proceedings against the case of A-1, does not arise. 23. It was no doubt observed by the learned Sessions Judge in the revision order particularly at para 12 in page 7 that the Magistrate committed by a mistake and could not have allotted the PRC Number by taking cognizance on the police final report so far as the A-1 concerned. In fact, by then, the question of defacto-complainant filing protest against A-2 does not arise. Once such is the case when the Magistrate not chosen to defer with the opinion arrived by the police in the final report only charging A-1 and not charging A-2 for the offences, Magistrate is bound to allot PRC number by taking cognizance for the offences against the A-1. However, at best it can be said he could have waited till proof of service by the police on the defacto-complainant for filing protest against the referred report so far as A-2 concerned. Here that difficulty also does not arise from the police filed memo pending investigation closing the case against the A-2 and same also was recorded by the Magistrate. He could have at least given a notice to the defacto-complainant at that stage on that memo to raise a protest thereon, even pending investigation so far as against A-1 concerned including from the expression of the Apex Court in Sakiri Vasu v. State of U.P. 2008 (1) KLT 724 (SC) where the Magistrate got even such power under Section 157 Cr.P.C. in the crime stage to ask the police to make further investigation in the pending investigation instead of accepting referred report so far as A-2 concerned that Was not done. 24. Here that is not even the be all and end all, more particularly for the reason that the Magistrate's power to commit a case is virtually post office duty subject to compliance of Section 209(a to d) Cr.P.C, as laid down in Raj Kishore Prasad v. State of Bihar 1996 (2) ALT (Crl.) 92 (SC) : AIR 1996 SC 1931 once it appears case triable by Court of Sessions from the taking of cognizance for the offences against any of the accused. No doubt same is different from the array of the additional accused during trial from the evidence under Section 319 Cr.P.C. It was also clarified by the Constitution Bench of the Apex Court by referring to Raj Kishore (supra) in Dharampal (supra) and that was explained by the subsequent Constitution Bench expression in Hardeep Singh v. State of Punjab 2014 (1) ALT (Crl.) 352 (SC) : AIR 2014 (3) SCC 306 . 25. As referred supra, there is only one FIR against several accused and even there is at the first part with first signature, there is a second part of contents before the second signature of the two incidents in the same transaction. From the reading of the whole report, registered as FIR, what is relevant reproduced supra, what is stated in relation to the role of A-2 is in the same transaction to say in continuation to the incident referred against A-1 and his parents i.e., husband and in-laws of the defacto-complainant. It is no doubt not clearly saying as to within the house or outside the door in the house premises of K. Sivananda Reddy (father-in-law of the defacto-complainant), the Lawyer K. Sudharshan Reddy-A-2 petitioner herein used vulgar language on her mother and on her and given wrong directions and made bald allegations against her character and requested to take action against him. 26. The use of the vulgar language on both women and making bald rumours and giving wrong directions in that house is clearly stated against A-2. From this coming to the protest petition of the defacto-complainant what is reproduced supra, it is stated in para-3 of the protest petition that contains material portion referred supra of inside the house and not outside the house on morning about 11.00 a.m., of 14-10-2016. Even from the protest petition as A-2 was there at the house of K. Shivananda Reddy though not specifically mentioned as to he was inside or outside the house. It is thus unacceptable the contention on Behalf of the petitioner/A-2 by the learned Senior Counsel that those are independent transactions and not form part of the same transaction. 27. Even from the protest petition as A-2 was there at the house of K. Shivananda Reddy though not specifically mentioned as to he was inside or outside the house. It is thus unacceptable the contention on Behalf of the petitioner/A-2 by the learned Senior Counsel that those are independent transactions and not form part of the same transaction. 27. Reading from those, coming to the depositions, the deposition of defacto-complainant as one of three witnesses examined referred supra is also very clear of what he threatened in detail and what he abused in detail by saying he (A-2) came outside the house did not acts. Even therefrom, it is only in the same transaction the different incident taken place and not covered by different transactions. 28. Once such is the case from perusal of the material, for this Court cannot go into ultimate possibility of conviction or acquittal but for to take cognizance, it is only application of mind to the facts. As the law is very clear that even reasons not assigned, the Court has to consider the cognizance was outcome of application of mind or not. 29. A perusal of the cognizance order of the Magistrate against A-2 makes out prima facie the offences under Sections 506 and 509 IPC. There offences are bailable and triable by Magistrate. Thus only the Calendar Case Number should have been allotted rather PRC number. 30. From this, now the issue to be answered is whether the order of the learned Magistrate confirmed by the learned -Sessions Judge in adding A-2 in the existing PRC No. 27 of 2017 proceedings pending against the A-1 subsequently after the post-cognizance stage of the offences against the A-1 is sustainable from other independent cognizance taken for some of the offences triable by the Magistrate discussed supra, same is not sustainable but for to say the offences are outcome of the same transaction, that has to be in same trial from witnesses are mostly common. The answer to it is in fact covered by the wording of Section 223(d) Cr.P.C; which says the following persons may be charged and tried together, namely:(d) persons accused of different offences committed in the course of the same transaction; Suffice to say even though the Calendar Case against the petitioner-A-2 can be tried by the learned Magistrate and there is a right of appeal in the event of conviction to the Court of Sessions, once it is covered by same transaction, even cognizance of offences against A-1 and against A-2 are taken from different proceedings, the Magistrate either by mentioning these facts submit case records through the Chief Judicial Magistrate to the Sessions Division or by keeping the matter pending with him by addressing a letter to that effect to the Sessions Division so that the Sessions Division has to call for the record for both the cases are outcome of the same-transaction be tried together by framing necessary charges. 31. With these observations, the Criminal Petition is partly allowed by setting aside the order of adding the petitioner herein as A-2 in the existing PRC No. 27 of 2017 and by directing the Magistrate to allot Calendar Case number from the cognizance taken for the offences punishable under Sections 506 and 509 IPC against A-2 and at the post-cognizance by summing the accused after appearance in the meantime by addressing a letter to the Sessions Division through the Chief Judicial Magistrate and forward the case record also by virtue of this order for all purposes by invoking Section 482 Cr.P.C. for the learned Sessions Judge, where the Sessions Case in the event of committal of A-1's case to be made over to try the Calendar Case also along with that Sessions Case. Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.