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2022 DIGILAW 1232 (AP)

Budamuru Harikrishna v. State of Andhra Pradesh

2022-11-08

NINALA JAYASURYA

body2022
ORDER: 1. The present Criminal Petition is filed seeking to quash the Order dated 29.06.2017 passed in Cr.No.9 of 2017 on the file of the Station House Officer, Amudalavalasa, Srikakulam District, the cognizance of which was taken in C.C.No.99 of 2017 on the file of the Learned Judicial First Class Magistrate, Amudalavalasa, Srikakulam District. 2. The petitioners herein are Accused Nos.2, 3, 7, 13, 14 & 15 in the above said crime. 3. Heard learned counsel for the petitioners and the learned Assistant Public Prosecutor appearing for the 1st respondent-State. Personal notice taken out on the 2nd respondent/ de facto complainant was returned with an endorsement ‘refused’. Hence, the notice is deemed to have been served on the 2nd respondent and none entered appearance on behalf of the 2nd respondent/ de facto complainant. 4. Pursuant to a complaint lodged by the 2nd respondent/ de facto complainant, the police registered a F.I.R on 19.02.2017 against the petitioners and others for the offences punishable under Sections 324 and 506 R/w Section 34 of the Indian Penal Code (for short ‘IPC’). After conducting investigation, police filed a Charge Sheet on 19.05.2017 against Accused Nos.1, 4, 5, 6 & 8 and 10 to 12 for the offence punishable under Section 324 of IPC, that Accused Nos.1, 4, 5, 6, 8 to 12 have criminally intimidated L.Ws 1 & 2 with a common intention and as such liable for punishment under Section 506 R/w Section 34 of IPC. The police have also charge sheeted Accused No.12 for the offence punishable under Section 326 of IPC. The police have deleted the names of A.2, A.3, A.7, A.13, A.14 & A.15 as their participation is not established. In view of the same, the 2nd respondent/ de facto complainant filed Memo of Objections to the report of the police in filing a Charge Sheet without including the petitioners herein as accused stating inter alia that the police ought to have filed Charge Sheet against them for the offences punishable under Sections 307, 326, 324 and 506 R/w Section 34 of IPC. Considering the said objections, the learned Magistrate passed an Order dated 29.06.2017 taking cognizance for the offences punishable under Sections 326, 324, 506 R/w Section 34 of IPC against the petitioners/A.2, A.3, A.7 and A.13 to A.15. Aggrieved by the same, the present Criminal Petition came to be filed. 5. Considering the said objections, the learned Magistrate passed an Order dated 29.06.2017 taking cognizance for the offences punishable under Sections 326, 324, 506 R/w Section 34 of IPC against the petitioners/A.2, A.3, A.7 and A.13 to A.15. Aggrieved by the same, the present Criminal Petition came to be filed. 5. Learned counsel for the petitioners, inter alia, contends that the order of the Learned Magistrate taking cognizance for the alleged offences against the petitioners herein is not sustainable in Law. He submits that the concerned police officials after conducting investigation and examining the witnesses found that the petitioners herein did not participate in the alleged offences and filed Charge Sheet against Accused Nos.1, 4, 5, 6 & 8 to 12. He submits that the Investigating Officer has given cogent reasons for not filing Charge Sheet against the petitioners and in such circumstances the Learned Magistrate is not justified in taking cognizance for the offences against the petitioners. He further submits that the 2nd respondent/de facto complainant filed „Memo of Objections? instead of filing a „protest petition? against deletion of the petitioners while filing Charge Sheet and the same is not maintainable. In elaboration, he submits that the protest petition shall be in the form of a complaint giving all necessary particulars of the offence including the witnesses to prove the same, which may show prima facie case against the petitioners. He further submits that the Learned Magistrate, however entertained the Memo of Objections and recorded the statement of de facto complainant only in respect of the present petitioners, but not against all the accused and taken cognizance of the offences, which is legally not sustainable. The learned counsel also submits that the matter is covered by a decision of the High Court of Karnataka in Veerappa and others vs. Bhimareddappa, [ILR 2002 KAR 1665]. Making the said submissions, the learned counsel seeks to allow the Criminal Petition by setting aside the impugned order. 6. The learned Assistant Public Prosecutor on the other hand, supported the order passed by the Learned Magistrate, inter alia, contending that there is no illegality, as the Learned Magistrate recorded the statements of the 2nd respondent/ de facto complainant and the other injured before taking cognizance of the offences against the petitioners herein. 6. The learned Assistant Public Prosecutor on the other hand, supported the order passed by the Learned Magistrate, inter alia, contending that there is no illegality, as the Learned Magistrate recorded the statements of the 2nd respondent/ de facto complainant and the other injured before taking cognizance of the offences against the petitioners herein. He further submits that in any event, the petitioners will have an opportunity of adducing evidence to disprove the allegations and charges levelled against them during the course of Trial and therefore, no interference is warranted by this Court, in exercise of power of under Section 482 Cr.P.C and seeks to dismiss the Criminal Petition. 7. This Court has considered the submissions made and perused the material on record. On a scrutiny of the relevant contentions, the only point that falls for consideration by this Court is as to whether the order of the Learned Magistrate taking cognizance of the offences against the petitioners is sustainable or the same is liable to be set aside, in the light of the submissions made by the learned counsel for the petitioners. 8. In order to appreciate the contentions advanced by the learned counsel for the petitioners, it may be appropriate to mention that there are three different ways, in which the cognizance of offence can be taken by the Magistrate, in terms of Section 190 Cr.P.C, which is reproduced for ready reference:- 190. Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try. 9. Chapter XV of the Code of Criminal Procedure provides for complaints to the Magistrate and Section 200 of Cr.P.C deals with examination of complainant by the Magistrates, which reads thus:- 200. 9. Chapter XV of the Code of Criminal Procedure provides for complaints to the Magistrate and Section 200 of Cr.P.C deals with examination of complainant by the Magistrates, which reads thus:- 200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them. 10. Thus, for taking cognizance and examination of the complainant, there should be a ‘complaint’ made to the Learned Magistrate before taking cognizance of an offence. Section 2(d) of Cr.P.C defines ‘complaint’ as follows:- "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 11. The Hon’ble Supreme Court had an occasion to consider the word ‘complaint’ in Bhimappa Bassappa Bhu Sannavar vs. Laxman Shivarayappa Samagounda and Others, [1969 SCC (1) 665] and held as follows:- “Para 11: The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence.” In the light of the above expression of the Hon’ble Supreme Court, it has to been seen as to whether a Memo of Objection can be treated as a ‘complaint’ or a ‘protest petition’ to the report of the police against deletion of some of the accused, while filing the Charge Sheet. 12. In the present case, a close reading of the Memo of Objections in the considered opinion of this Court would not satisfy any of the requirements of a „complaint? and does not contain allegations, which prima facie, discloses the commission of an offence with necessary facts for the Learned Magistrate to take action. Mere filing of objections, without reference to facts and allegations to establish prima facie case of commission of offence, in the considered opinion of this Court would not suffice and the question of Learned Magistrate examining the complainant and the witnesses, if any, upon oath, with reference to the facts of the case does not arise at all and taking cognizance of any offence, in such circumstances, is not tenable. 13. In Veerappa & Others referred to supra, a Learned Judge of the High Court of Karnataka was dealing with a case wherein, the Learned Magistrate had taken cognizance of the offence by considering the “objections” to the report filed by the police, like in the present case. The Learned Judge after referring to the relevant provisions of Law, allowed the quash petition. It is profitable to extract the relevant portion of the order, which reads thus:- “…….Where initially the complainant has not filed any complaint before the Magistrate under Section 200 of the Cr. P.C., but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C. on a complaint. P.C., but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C. on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Cr. P.C., and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) of the Cr. P.C. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 of the Cr. P.C. That is what has happened in the present case, and in my opinion, the contents of the protest petition do not make the document concerned a complaint within the meaning of Section 2(d) of the Cr. P.C.” 14. In the present case also, no initial report was made to the Learned Magistrate, but to the police and after investigation, a Charge Sheet was filed by deleting the names of some of the accused, the petitioners herein. Thereafter, Memo of Objections was filed, which as opined earlier, is not in the form of a ‘complaint’, much less a ‘protest petition’ setting out the relevant facts and allegations enabling the Learned Magistrate to take a prima facie view in the matter, after examination of the complainant and witnesses for taking cognizance of offence. The Memo of Objections, as is filed, does not satisfy the requirements of a ‘complaint’ and taking cognizance of offence on the basis of the same, is not sustainable in Law. This Court finds merit in the submissions made by the learned counsel for the petitioners that the decision referred to above applies in all fours to the facts of the present case. 15. Accordingly, the Criminal Petition is allowed and the impugned proceedings are quashed. However, this order would not preclude the 2nd respondent/de facto complainant to file a fresh complaint/protest petition and if such course of action is adopted, the same shall be considered, in accordance with Law. As a sequel, miscellaneous applications, pending if any, shall stand closed.