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2020 DIGILAW 143 (AP)

M. Madhavi latha v. State Of A. P.

2020-02-20

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT : D.V.S.S. Somayajulu, J. This Criminal petition is filed seeking to quash the proceedings in Crime No.48 of 2019 of II Town Police Station, Madanapalle, pending on the file of the II Additional Judicial First Class Magistrate, Madanapalle. 2. This court has heard Sri P. Vasu Sekhar and the learned Public Prosecutor appearing for the 1st respondent. Despite notice the 2nd respondent did not appear. Proof of service is filed with USR No.59103 of 2019. 3. The short and simple question that arises in this case is whether the action of the 2nd respondent is correct and as per law or not. The FIR, which is the subject matter of the challenge, was registered on 10.05.2019. The offences alleged are under Sections 269, 270, 275 and 276 read with 34 IPC. The gist of the defence raised by the learned counsel for the petitioner or the other grounds urged by him to quash the proceedings is that the 2nd respondent has conducted an investigation into the matter even before the FIR was registered. He points out that basing on the alleged raid held on 05.05.2019, the FIR was registered on 10.05.2019. Learned counsel points out that even the letter addressed by the 2nd respondent to the Inspector of Police clearly speaks of a search and seizure operation that was conducted on 05.05.2019. He therefore argues that the entire procedure in this case is vitiated. Apart from that he also points out that the seizure was supposedly intimated to the II Additional Judicial First Class Magistrate Court on 06.05.2019 itself. Therefore, he submits that once the intimation was given to a Magistrate under section 190 of Cr.P.C., it is the Magistrate alone who can take cognizance of the case and that the police cannot take action to register an FIR. He also submits that once the Magistrate takes cognizance of the offence he will have to examine the complainant and follow the procedure under Section 200 Cr.P.C. The complaint, according to the learned counsel, should have been filed on 06.05.2019 itself. Once the so called search and seizure happened on 05.05.2019 or the report was given to the 2nd Additional Judicial Magistrate of First Class on 06.05.2019, learned counsel submits that the police did not have the jurisdiction to take any further steps, let alone register an FIR. Once the so called search and seizure happened on 05.05.2019 or the report was given to the 2nd Additional Judicial Magistrate of First Class on 06.05.2019, learned counsel submits that the police did not have the jurisdiction to take any further steps, let alone register an FIR. Learned counsel relies upon the judgments of the High Court of the Karnataka reported in L. Shankaramurthy v State, 2012 9 Laws(kar) 150 and Lakshmikantha S.G. v The State and Ors., 2016 2 Laws(Kar) 30 and argues that the entire proceedings have to be quashed. 4. Learned Public Prosecutor on the other hand argues that the charge sheet has already been filed in this case on 18.06.2019. He points out that Section 269 IPC is attracted and that the disputed questions cannot be agitated. It is his case that the disputed facts cannot be taken into consideration to quash all further proceedings. Therefore, he submits that this is a fit case which must go for trial and that this is not a case for quashing of proceedings at all. 5. This Court after hearing both the counsel notices that there is no dispute about the dates/sequence of events. Additional documents filed also show that the Mahazar conducted on 05.05.2019, statements were also recorded on 05.05.2019, and that seizure was also effected in the presence of some punch witnesses on 05.05.2019. It is not clear why an FIR was not registered or intimation given to the police on 05.05.2019. Apart from that it is also clear that information was given to the 2nd Additional Judicial First Class Magistrate, Madanapalle on 06.05.2019 as per the written report of the 2nd respondent. Therefore, it is clear that the procedure contemplated under the Cr.P.C. has not been followed. The procedure contemplates registering of an FIR immediately on the commission of cognizable offence. There is no explanation given for the delay as held in the judgment of Lakshmikantha case (2 supra), wherein it is clearly held that the material collected before the registration of the case cannot be blended with the private Mahazar etc., subsequent to the registration of the FIR. The Karnataka High Court clearly held that this vitiates the entire case. The information was also given to the Magistrate is borne out by the letter addressed by the 2nd respondent to the Inspector of Police. The Karnataka High Court clearly held that this vitiates the entire case. The information was also given to the Magistrate is borne out by the letter addressed by the 2nd respondent to the Inspector of Police. If the information was given to the Magistrate, he will have to take cognizance of the same under Section 190 of Cr.P.C. of an offence that is allegedly committed. Thereafter, he will have to follow the procedure prescribed under Section 200 Cr.P.C. But in this case despite the information that is given it is not clear what happened thereafter. The fact however remains that the FIR was registered five days after the alleged seizure in the presence of the witnesses etc. Therefore, in view of the judgment cited by the learned counsel for the petitioner, which squarely applies to the facts and circumstances of this case, this Court is of the opinion that the petitioner has to succeed. Apart from that there are two non-cognizable offences viz., 275, 276 IPC which have been registered. Once there is a non-cognizable offence is registered, permission of the Magistrate has to be obtained under section 155(2) of Cr.P.C. The same is also not done in the present case. 6. Although, learned Public Prosecutor tried his level best to justify the case and argued on merits, this Court is of the opinion that the fundamental flaw in the procedure, that has been adopted, vitiates the entire investigation and trial. This Court is of the opinion that the petitioner is entitled to an order as prayed for. Section 482 of Cr.P.C. confers a wide power on this Court to act, this Court is of the opinion that this is a fit case for this Court to interfere. Hence, there should be an order as prayed for. Even though the charge sheet is filed, the law is well settled that the FIR can still be quashed. Keeping in view of the settled law on this subject, this Court is of the firm opinion the petitioner is entitled to the relief as prayed for. 7. Accordingly, this Criminal Petition is allowed and all further proceedings in Crime No.48 of 2019 of II Town Police Station, Madanapalle, and the charge sheet pending before the II Additional Judicial First Class Magistrate, Madanapalle is quashed. 8. As a sequel, Miscellaneous Applications, if any, pending in this Writ Petition shall stand closed.