Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 505 (AP)

D. Venkataratnam v. Sate of A. P.

2023-03-07

V.R.K.KRUPA SAGAR

body2023
ORDER : These two criminal revision cases filed under Sections 397 and 401 Cr.P.C. are from the same individual and as against the same individual and both pertain to the same case and therefore, they are considered together and are to be disposed of together. 2. Crime No.33 of 2010 of R.A.Valasa Police Station was investigated into by the Sub-Divisional Police Officer, Palakonda and after completion of the investigation, the police report under Section 173 Cr.P.C. was filed before learned Judicial First Class Magistrate, Rajam. The police report discloses 37 individuals as A.1 to A.37 committed the offences alleged. It enlisted 55 witnesses. The investigative outcome is that Kagitapalli Village is in Parampeta Panchayat. A.2 is Sarpanch of the village. A.1 is her husband and he was the former Sarpanch. In this village there were groups among some political parties and there were disputes among them. There were also disputes between one political party as against the other political party. There were cases and counter cases in the earlier periods. Since certain allegations came up as against Sarpanch and others about misuse of funds, once again the controversies between groups erupted. It was in that context, the allegations are that all the 37 accused conspired and attacked the opposite group consisting of people belonging to scheduled caste. Some of the accused were holding dangerous deadly weapons and some of the accused were holding stones in their hands. In the attack two persons died and several persons sustained injuries and some of the accused also sustained injuries. Narrating those facts in detail along with the case diaries and other documents and material objects the police report was filed alleging the following offences: “Sections 147, 148, 302, 307, 326, 324, 354, 114, 120(B) and 427 read with 149 I.P.C.; and Sections 3(1)(x) and 2(v) of SCs and STs (POA) Act, 1989.” 3. On 27.11.2010 the learned Judicial First Class Magistrate verified the entire record and appraised himself of all the facts and passed the following order: “Perused the charge sheet and other connected documents. Taken on file against A.1, A.3 to A.5, A.7, A.8, A.11 to A.37 under Sections 147, 148, 302, 307, 326, 324, 114 read with 149 I.P.C. and Sec. 3(1)(x) and 2(v) of SCs and STs (POA) Act, 1989. Taken on file against A.1, A.3 to A.5, A.7, A.8, A.11 to A.37 under Sections 147, 148, 302, 307, 326, 324, 114 read with 149 I.P.C. and Sec. 3(1)(x) and 2(v) of SCs and STs (POA) Act, 1989. No prima facie case is made out against all accused under Section 354 I.P.C. No case is made out against A.2, A.6, A.9 and A.10 under any alleged section of law as such they are discharged from the Sections of law. Issue summons to A.3 to A.5, A.7, A.8, A.11 to A.37. Issue N.B.W to A.1 as he was not arrested so far.” 4. Since by the above order, four accused were not summoned and as against them an order of discharge was recorded and the same was assailed by the State as well as by the de facto complainant. State filed Criminal Revision Petition No.2 of 2011 and the de facto complainant preferred Criminal Revision Petition No.3 of 2011. Both were before the learned Principal District and Sessions Judge, Srikakulam. After hearing both sides, by a common order both the criminal revision petitions were disposed of by the learned Sessions Judge. By its order it allowed both the revisions and set aside the order passed by the learned Judicial First Class Magistrate and a direction was given to proceed against A.2, A.6, A.9 and A.10 in accordance with law. 5. Assailing those orders only A.2 preferred Criminal Revision Case No.2306 of 2011 as against order in Criminal Revision Petition No.2 of 2011. The same A.2 filed Criminal Revision Case No.2309 of 2011 assailing the order in Criminal Revision Petition No.3 of 2011. 6. In both the revisions, State is one of the respondents and the de facto complainant is the other respondent. 7. Learned counsel on both sides submitted arguments. 8. The point that arises for consideration is: Whether the order of the learned Sessions Judge suffers from manifest errors of law or fact requiring interference in these revisions? 9. Point: Concurrent revisional jurisdiction has been made available to this Court as well as Sessions Court in terms of Section 397 Cr.P.C. However, in the case at hand revision before the learned Sessions Judge was at the behest of the State and the de facto complainant and not by the accused. 9. Point: Concurrent revisional jurisdiction has been made available to this Court as well as Sessions Court in terms of Section 397 Cr.P.C. However, in the case at hand revision before the learned Sessions Judge was at the behest of the State and the de facto complainant and not by the accused. The present revision is the first one in which accused/A.2 challenges the order passed by the learned Sessions Judge while exercising revisional jurisdiction. To sustain the maintainability of these revisions, the learned counsel for revision petitioner cited a judgment of the Hon’ble Supreme Court of India in Krishnan v. Krishnaveni, (1997) 4 SCC 241 (3 Judge Bench). Their Lordships extensively dealt with the revisional jurisdictions of the High Court as well as Sessions Court and referred to Sections 397, 401 and all other relevant provisions of Code of Criminal Procedure and expounded the ambit of Section 401 Cr.P.C. and ruled that in certain given circumstances the revisional powers of High Court contained in Section 401 Cr.P.C. are still available with it despite the fact that Sessions Court disposed of certain revisions. As against this, nothing contrary is cited for respondents and no contrary proposition of law is argued. It is in these circumstances, this Court further proceeds with these revisions. 10. As soon as investigation is completed the officer in-charge of the police station shall forward to Magistrate a police report in terms of Section 173 Cr.P.C. This report shall contains all the statements of witnesses recorded under Section 161 Cr.P.C. and all the documents on which the prosecution intended to rely upon. When such police report is received, it is for the learned Judicial First Class Magistrate to consider the entire record and if he finds that the facts emerging from the record would constitute an offence, he shall take cognizance for such offences as provided in Section 190(1)(b) Cr.P.C. Having taken cognizance of offence/offences, the next endeavour of the learned Magistrate is to find out as to whose involvement is there for those offence for which he took cognizance of and then secure the presence of those individuals by issuing necessary process. He is entitled to do so only when he finds that there is sufficient ground for him to proceed as against such of those individuals and the same is clear from Section 204 Cr.P.C. Thus, noticing the occurrence of an offence and noticing the fact that the relevant facts constituting the offences are available is one part of the judicial exercise of the Magistrate. The other part of the duty of the Magistrate is to see who is to be invited to the Court to answer these allegations and it is only those whose involvement is prima facie available from the record are required to be called to the Court. It is these aspects of the law that fall for consideration in these revisions. 11. The learned Judicial First Class Magistrate by his order dated 27.11.2010 indicated that he went through the entire material on record and he found facts constituting the offences and he took cognizance for those offences and he found persons who should be called to answer those allegations and issued process to them. In his conscious endeavour, the learned Magistrate recorded that there was no prima facie material to proceed against 4 out of the 37 accused and therefore, he did not choose to call them and dropped proceedings against them. The word used by the learned Magistrate was that he ‘discharged’ the said accused. That particular word discharge used by the Magistrate was assailed before the learned Sessions Judge in the revisions that were filed before the said Court. After eminently considering that aspect of the matter, the learned Sessions Judge at the closing parts of paragraph No.17 recorded that at that particular stage what was available to the learned Magistrate was to record that proceedings were dropped against them. Learned Sessions Judge stated that the word ‘discharge’ employed by the learned Magistrate was not correct and in fact there was no power with Magistrate to discharge an accused, in a case where trial was to take place not before him but before the Sessions Court. This rendition of law by the learned Sessions Judge is completely in accordance with law. The theme of this discussion indicates that though inaccurate word was used by the learned Magistrate, his power to drop proceedings and no prima facie was found by him was not doubted by the learned Sessions Judge. This rendition of law by the learned Sessions Judge is completely in accordance with law. The theme of this discussion indicates that though inaccurate word was used by the learned Magistrate, his power to drop proceedings and no prima facie was found by him was not doubted by the learned Sessions Judge. Laying down the principles to be kept in mind for Courts which take cognizance of certain offences the Hon’ble Supreme Court of India in Harishchandra Prasad Mani v. State of Jharkhand, (2007) 15 SCC 494 held that on mere suspicion the Court shall not take cognizance and shall not summon persons to stand up for trial. That cognizance cannot be taken unless there is some material indicating the involvement of the accused. If there is no material implicating the accused, Courts cannot take cognizance since such a principle is required as it would avoid harassment of people. To this ruling cited by learned counsel for revision petitioner, nothing contrary is shown or argued for respondents. Therefore, guided by this ratio now the record has to be seen. 12. Learned Magistrate considered the material as against all the 37 accused. In his considered opinion he found it fit to summon 33 of them and drop proceedings as against 4 of them. He reached to that conclusion since he did not find sufficient ground to proceed against him. That there is sufficient ground to proceed against them or not is one question that has to be considered. That the material did not in the opinion of the Magistrate was sufficient to take further process is another point for consideration. In the impugned order the learned Sessions Judge did not dilate on any facts available from the record but reached to a different conclusion than the conclusion that was arrived at by the learned Magistrate. At para No.24 of the impugned order, the learned Sessions Judge points out that the material filed by the police indicates that the allegations are as against all the accused and therefore, the allegations as against those against to whom process was issued as well as the allegations as against those who were not summoned are same and therefore, it found fault with the learned Magistrate and upset the order. 13. 13. In Sanjaysinh Ramarao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123 , the Hon’ble Supreme Court of India held that unless the order passed by the Magistrate is perverse or the view taken by the Court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the revisional Court is not justified in setting aside the order, merely because another view is possible. The revisional power of the Court under Sections 397 to 401 Cr.P.C. is not to be equated with that of an appeal. 14. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , the Hon’ble Supreme Court of India held that in coming to a decision as to whether a process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the record. Once the Magistrate has exercised his discretion, it is not for the superior Courts to substitute their own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether the allegations in the case would ultimately end in conviction of the accused. 15. In Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 , their Lordships held that the process of the criminal Court shall not be permitted to be used as a weapon of harassment. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. 16. Having heard the submissions on both sides and having considered the law as is available, this Court is unable to concur with the approach of the learned Sessions Court. As long as the revisional Court could not record what were the facts or other facts that would show the implication of the present revision petitioner it could not have reversed the order of the learned Magistrate. During the course of these revisions, it is pointed out that the relevant statements of witnesses contained in Section 161 Cr.P.C. do not even make a reference to the present revision petitioner/A.2 concerning her involvement in the offences alleged. When that being the case, the opinion of the Magistrate could not be substituted by the learned Sessions Judge. 17. During the course of these revisions, it is pointed out that the relevant statements of witnesses contained in Section 161 Cr.P.C. do not even make a reference to the present revision petitioner/A.2 concerning her involvement in the offences alleged. When that being the case, the opinion of the Magistrate could not be substituted by the learned Sessions Judge. 17. For the above mentioned reasons, this Court finds that the order of the learned Magistrate that he did not find sufficient material to proceed further as against the present revision petitioner/A.2 is not in violation of any principles of law and he did not act beyond his jurisdiction in passing such an order and that there was no ground to interfere with it by the learned Sessions Court. Point is answered accordingly. 18. In the result, both the Criminal Revision Cases are allowed setting aside the common order dated 08.09.2011 of the learned Principal District and Sessions Judge, Srikakulam in Criminal Revision Petition Nos.2 and 3 of 2011. The order of the learned Magistrate in dropping the proceedings against the petitioner/A.2 holds good. As a sequel, miscellaneous applications pending, if any, shall stand closed.