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2020 DIGILAW 516 (AP)

K. Satyanarayana v. State Of Andhra Pradesh

2020-08-11

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT D.V.S.S.Somayajulu, J. - With the consent of all the parties, the Writ Petition itself has been taken up for disposal. All the learned counsel argued for disposal of the writ petition itself. 2. The prayer in the writ petition is as follows- "....to issue an order or direction more particularly one in the nature of the writ of Certiorari quashing the FIR in Cr.No.153/2019, pending on the file of P.S. Kurnool II Town for the offences under U/sec.420, 506 r/w 43 IPC, 3 (1)(r), 3(1)(s) of SC, ST POA Act, against the petitioner, for registering the said crime in gross violation of petitioner's right to file and liberty as guaranteed by Article 21 of Constitution of India, and also for registering the said crime in utter disregard of the dictum of the Hon'ble Supreme Court passed in Dr.Subhash Kasinath Mohajan Versus State of Maharashtra, (2018) 6 SCC 454 (Crl.Appeal No.416 of 2018 (Arising out of Special Leave Petition) (Crl.) No.5661 of 2017, dated 20.3.2018 ) by calling for records, and to consequentially direct the first and second respondent to initiate disciplinary action against the fourth respondent for violation of the orders passed by the Apex court and to pass such other or orders as deemed fit and proper and to pass such other order or orders as this Hon'ble Court deems fit and proper in the interest of justice." 3. Sri A.Tulsi Raj Gokul, learned counsel for the petitioner has commenced the arguments. It is his contention that the application under Section 226 of the Constitution of India is maintainable for quashing of the FIR in Crime No.153 of 2019 of Kurnool II Town Police Station, which was registered for the offences under Sections 420, 506 read with 34 IPC, 3(1) (r), 3(1) (s) of SC, ST POA Act. Learned counsel for the petitioner points out that this is a fit case to quash the FIR, since according to him no case is virtually made out, particularly under the provisions of SC, ST POA Act, and that a preliminary inquiry as mandated by the judgment of the Hon'ble Supreme Court of India in Dr. Subhash Kashinath Mahajan v State of Maharashtra and Another has not been carried out. It is his essential contention that before registering the case under the provisions of SC, ST POA Act a preliminary inquiry should be conducted. Subhash Kashinath Mahajan v State of Maharashtra and Another has not been carried out. It is his essential contention that before registering the case under the provisions of SC, ST POA Act a preliminary inquiry should be conducted. He also states that the offences could not have actually occurred as mentioned in the FIR, because of the prevalent Covid pandemic and the imposition of Section 144 Cr.P.C. in that area. It is his contention that as there is an express prohibition of the movement of people and the police themselves were enforcing the said prohibition, the occurrence of the offence as stated in the report is highly improbable. Therefore, learned counsel for the petitioner argues that the police had a duty to conduct an inquiry about the very occurrence of the event before registering the FIR. He also points out that the CCTV cameras, which were installed, had also recorded activities in the street and that the recording of the same would show that the offence did not occur at that time and in that area at all. He states that the FIR is lodged maliciously and is a clear abuse of provisions of law. 4. Learned counsel for the petitioner points out the grounds on which the application is filed. He relies upon the following case law, which were submitted by him along with a memo on 06.08.2020: Gorige Pentaiah v State of Andhra Pradesh & Others; A.S.Chandra Sekhar Reddy v State of Andhra Pradesh; Prathvi Raj Chauhan v Union of India; Pepsi Foods Ltd., and Another v Special Judicial Magistrate and Others; Union of India v State of Maharashtra. 5. Relying on these judgments, learned counsel for the petitioner argues that even if it is held that the law laid down in Dr. Subhash Kashinath Mahajan case (1 supra) is no longer good law, still this Court has to go into the issue- whether or not the police had a duty to look into the sequence of the events to decide if an offence had occurred. Learned counsel submits that if on a reading of the sequence of events, it appears that the same is inherently improbable, the police should not register the FIR. Therefore, learned counsel argues that it is incumbent upon the police to look into the issue and then only come to a conclusion about the registration of the FIR. Learned counsel submits that if on a reading of the sequence of events, it appears that the same is inherently improbable, the police should not register the FIR. Therefore, learned counsel argues that it is incumbent upon the police to look into the issue and then only come to a conclusion about the registration of the FIR. In all fairness, learned counsel for the petitioner agrees that against the judgment in Dr. Subhash Kashinath Mahajan case (1 supra) a review petition was also filed, apart from a challenge to the amendments brought to the SC, ST POA Act, which was decided in the case of Prathvi Raj Chauhan case (4 supra). Relying on these judgments and also the factual aspects that are argued earlier, Sri Tulsi Raj Gokul argues that the case is deliberately foisted on the petitioner. He points out that this is a fit case to exercise the power to quash all further proceedings. 6. Learned Government Pleader for Home appears for the State. He points out that the counter affidavit has been filed. He relies upon the contents of the counter affidavit. According to him the law stated in Dr. Subhash Kashinath Mahajan case (1 supra) is no longer good law and that the order was reviewed by the three Judges of the Hon'ble Supreme court of India and the directions given in Dr. Subhash Kashinath Mahajan case (1 supra) were recalled. He also states that Section 438 of Cr.P.C. is not applicable for the offences under the SC, ST POA Act and therefore any pre-arrest bail / order would be contrary to the law. Learned Government Pleader for Home also raised an issue about the maintainability of Writ of Certiorari. He points out that the investigation is in progress and that six witnesses were examined by the date of counter and that all the witnesses have corroborated the facts of the FIR. Some more witnesses are to be examined according to the learned Government Pleader for Home. The position of law is also detailed in the counter affidavit and the learned Government Pleader for Home relying upon the judgments reported in Hema Mishra v State of U.P. and Ors., and The State of Telangana v Habib Abdullah Jeelani & Ors., argues that it is not a case for granting any protection or for entertaining the Writ. The position of law is also detailed in the counter affidavit and the learned Government Pleader for Home relying upon the judgments reported in Hema Mishra v State of U.P. and Ors., and The State of Telangana v Habib Abdullah Jeelani & Ors., argues that it is not a case for granting any protection or for entertaining the Writ. He points out that this is the reason why the State has very strongly objected the interim order that has been granted and prays that the Writ should be dismissed. 7. The counsel for the 5th respondent Sri Virupaksha Dattatreya Gouda argues on similar lines as the learned Government Pleader for Home. He also relies virtually the same case law that has been relied upon by the learned Government Pleader for Home and in addition he cites a Full Bench decision in T.C.Basappa v T. Nagappa and Ors., to argue that a Writ of Certiorari is not maintainable. 8. In rejoinder Sri Tulsi Raj Gokul states that he did not rest his entire case on the need for conducting a preliminary enquiry. He also argues that he sought for quashing on the ground that the very registration of the FIR is an abuse of the process of law and that the basic ingredients of the offences are not present for the registration of the FIR. He points out that in para-3 of the affidavit itself it is stated that the instant Writ Petition is filed against the excessive act of the 4th respondent in registering the crime and failing to inquire whether such an offence could have occurred because of the prevalent Coronal Covid restrictions. In addition, learned counsel argues that he also raised an issue about the State not following the directions in Dr. Subhash Kashinath Mahajan case (1 supra). He also relies upon the judgment of the Hon'ble Supreme Court of India in Pepsi Foods Ltd., and Another v Special Judicial Magistrate and Others wherein it was held that it is the substance of the writ petition that should be looked into and not the nomenclature. He states that even today as per the settled law if the FIR does not disclose commission of offence, this Court has power to quash the proceedings. 9. He states that even today as per the settled law if the FIR does not disclose commission of offence, this Court has power to quash the proceedings. 9. This Court after hearing all the learned counsel notices that there is no dispute about the law that has been cited, particularly the cases of Dr. Subhash Kashinath Mahajan case (1 supra), the review petition entertained by the Hon'ble Supreme Court of India and the later challenge in Prathvi Raj Chauhan case (4 supra). It is also a fact that Section 438 of Cr.P.C. is not applicable for cases in which an offence under SC, ST POA Act is registered. This Court also finds some strength in the submission made by the learned counsel for the petitioner that this Court should look into the sum and substance of the writ petition/writ affidavit rather than the nomenclature. Apart from raising the issue of the need for a preliminary inquiry in terms of the judgment of the Hon'ble Supreme court of India in Dr. Subhash Kashinath Mahajan case (1 supra) as pointed out there are other issues which are also raised, particularly, whether such an offence could have occurred due to the Covid restrictions. 10. This Court agrees with this submission that the nomenclature is not really important and that the sum and substance of the writ affidavit and the prayer should be seen. The ultimate objective of the Writ as can be seen is the quashing of the FIR. 11. The law laid down by the Hon'ble Supreme Court of India in State of Haryana v Bhajan Lal still continues to hold the field. Similarly, the law laid down in the Constitution Bench decision in Lalita Kumari v State of U.P. also continues to hold the field. 12. In Bhajan lal case (11 supra) the Hon'ble Supreme Court of India has summarized the entire law on the subject. Even now, if the reading of the FIR or the complaint makes it clear that no offence is made out, the power is available with this Court to quash all further proceedings. If the Court is convinced that the proceedings are manifestly mala fide or maliciously instituted, this Court can quash the proceedings. This position of law is not in doubt. If the Court is convinced that the proceedings are manifestly mala fide or maliciously instituted, this Court can quash the proceedings. This position of law is not in doubt. Equally certain is the law after the Constitution Bench in Lalita Kumari case (12 supra) wherein in a few limited cases only the Hon'ble Supreme Court of India said that a preliminary inquiry is necessary. The Hon'ble Supreme Court of India in Lalita Kumari case (12 supra) did not say that a preliminary inquiry is mandated in cases under SC, ST POA Act. 13. Hence, what survives for consideration is whether the petitioner was able to prove that a reading of the complaint makes it manifestly clear that an offence is not made out or whether he could prove that the complaint is initiated for ulterior or mala fide purpose. 14. This Court after examining the material on record and hearing the petitioner's submissions is of the opinion that it cannot enter into disputed area of facts to decide whether the offence is not made out at all. A prima facie reading of the report does not lead to this conclusion. The counter affidavit filed by the State shows that the witnesses examined till then also supported the case set up in the FIR. The correctness or otherwise of the recordings in the cameras (which are annexed to the Writ Petition) needs an investigation which this Court should not enter into. Whether by virtue of the Covid restrictions the movement of people came to an absolute standstill and the incident never occurred on that day at that time is again an issue of fact that has to be decided by the police during the course of their investigation. These are all areas of fact which this Court exercising power under Article 226 should not enter into. These are the matters which are best left open to the police for investigation. If after the investigation the police do come to a conclusion that the offence has not taken place they will take correct steps to close the matter. The petitioner also has his remedies in law in such situations. 15. The FIR in this case was registered on 16.05.2020 and the Writ Petition was filed on 12.06.2020. The investigation is also in progress. The petitioner also has his remedies in law in such situations. 15. The FIR in this case was registered on 16.05.2020 and the Writ Petition was filed on 12.06.2020. The investigation is also in progress. So at this stage quashing of the FIR is not really called for more so when in the opinion of this court the material is insufficient. Time and again the Hon'ble Supreme Court of India cautioned the Courts against quashing of FIRs at a very preliminary stage. 16. As far as the case of mala fides etc., are concerned although same is orally stated it is not adequately pleaded/established or clarified as to how the action is per se mala fide. Mala fides also require a good degree of proof. The Writ Petition does not disclose any clear material to show that the action was initiated mala fide. 17. The Hon'ble Supreme Court of India repeatedly stated that great care and circumspection must be exercised before quashing of FIR. This is also weighing heavily with this Court. The available material does not show that this case would fit within the grounds that are laid down in the land mark decision of Bhajanlal case (11 supra). 18. This Court holds that both the essential grounds that were urged by the learned counsel for the petitioner, (1) that the action is mala fide and that the FIR is initiated for an ulterior purpose 2) that the offence could not have occurred at all due to Covid restriction are not made out at this stage. Hence, this Court is of the opinion that there are no merits in the writ petition. This is not a case where the extraordinary power of quashing the FIR should be exercised particularly at this stage. 19. Accordingly, with the above observations, this Writ Petition is dismissed. No order as to costs. 20. As a sequel, pending miscellaneous applications, if any, shall stand closed.