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2023 DIGILAW 526 (AP)

Basina Veera Venkata v. State of Andhra Pradesh

2023-03-12

T.MALLIKARJUNA RAO

body2023
JUDGMENT 1. This petition is filed by the petitioner/complainant under Ss. 397 and 401 of Cr.P.C., seeking to direct the 4th respondent/Commissioner of Police to register the crime and investigate as per provisions of the Criminal Procedure Code, 1973 ("Cr.P.C.") and adhering the guidelines passed by the Constitution Bench of Hon'ble Apex Court. 2. The petitioner/complainant filed a complaint under Sec. 190 r/w. Sec. 156(3) of Cr.P.C. against the respondents 2 and 3 herein before the I Additional Chief Metropolitan Magistrate, Vijayawada (for short, "learned Magistrate") to direct the 4th respondent/3rdrespondent to register a crime for the offences under Sec. 468, 464 r/w. Sec. 471 IPC, wherein the learned Magistrate has rejected the complaint vide impugned order dtd. 11/5/2023 in C.F. No.1782 of 2023. Aggrieved by the said order, the petitioner/complainant preferred the present revision. 3. The brief facts of the case are that the 2nd respondent/Sub-Inspector of Police has filed a charge sheet in C.C.No.737 of 2016 pending before the learned IV Additional Chief Metropolitan Magistrate, Vijayawada ("the trial Court") where the petitioner herein arrayed as an accused and this Court stayed the same. The trial Court furnished all the documents to the petitioner/accused, where it was found that the Seizure Report/Mahazar of the personal computer had a discrepancy. The Charge Sheet narrated the address, i.e. from the accused house at Water Tank Street, Machavaram, Vijayawada, but. In contrast, the Seizure Report states that the Computer was seized from House No.68, K.G.O. Colony, 5th Road, Patamata, Vijayawada. (i) Subsequently, the petitioner lodged a complaint, registered as Crime No.868 of 2015 at Patamata Police Station, for destroying the data in his computer. To that effect, the Assistant Commissioner of Police, C.C.S., Vijayawada, investigated the matter and rightly identified that the Computer had been seized from the House of the petitioner at Plot No.63, K.G.O. Colony, 4th Road, Vijayawada and filed a report that effect, which is pending. The investigation established that the Seizure report/Mahazar report in C.C. No.737 of 2016, pending before the trial Court, is fabricated and manipulated. (ii) After receiving the copy of the report, the petitioner filed a complaint dtd. 7/9/2021 submitted on 14/9/2021 to the 4 th respondent against the 2nd respondent for his act of manipulation and fabrication of evidence, which is categorized as an offence under forgery under Sec. 468, 464 and 471 IPC. (ii) After receiving the copy of the report, the petitioner filed a complaint dtd. 7/9/2021 submitted on 14/9/2021 to the 4 th respondent against the 2nd respondent for his act of manipulation and fabrication of evidence, which is categorized as an offence under forgery under Sec. 468, 464 and 471 IPC. Later, the 4th respondent duly received the complaint and initiated an investigation without registering the crime before any Police Station. When the stage of marking the seizure/mahazar report, the petitioner objected to the marking of the document on the ground that there was a discrepancy in the documents, but the 3rd respondent, instead of correcting with their investigation officers, went on marking the document as it is genuine which falls under the offence under Sec. 471 IPC. Aggrieved by the same, the petitioner filed a complaint before the learned Magistrate, where the Court has power under Sec. 156(3) Cr.P.C. to pass directions to register the crime. After receiving the complaint filed as C.F. No.1781 of 2023, the learned Magistrate issued notices to the 3rd respondent, and after hearing both sides, the learned Magistrate rejected the complaint. 4. I have heard the learned Counsel for the petitioner/A.1 and Sri Anand Kumar Kochiri, learned Assistant Public Prosecutor, for the 1st respondent/complainant. 5. I have perused the material on record. 6. As seen from the impugned order, the learned Magistrate ordered notice to the respondents 1 to 3 therein before registering the complaint and referring the matter to the Police to hear the complaint's maintainability. It is the grievance of the petitioner/complainant that, at that stage, the learned Magistrate is not supposed to have ordered notice to the respondents. 7. Learned Counsel for the petitioner placed reliance on a decision reported in Anju Chaudhary vs State of U.P. and Others, = (2013) 6 SCC 384 . wherein the Hon'ble Apex Court held that: "32. While examining the above-stated principles in conjunction with the scheme of the Code, particularly Sec. 154 and 156(3) of the Code, it is clear that the Law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when a case is registered for committing a particular offence or the report Under Sec. 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage." 8. Learned Counsel for the petitioner further relied on a decision reported in A. Bala Prasad vs The State of Government of A.P. and others, = 2012 CrlLJ 3927. wherein the Composite High Court of Andhra Pradesh, observed thus: "15. A combined reading of these provisions makes it clear that if a Magistrate comes to know the occurrence of an offence, he can either take cognizance of the same by following the procedure prescribed under Sec. 200 or may forward that complaint under sub-sec. (3) of Sec. 156 of the Code to the police. While the former is a step, post-cognizance, the latter is the one of pre- cognizance. If a complaint is forwarded or the information is passed on by a Magistrate, under Sec. 156(3) of the Code, the cognizance thereof comes to be taken only when the police submit its report and he is satisfied that an offence was committed. He cannot forward the matter to the police under Sec. 156(3) of the Code once cognizance is taken. 16. The question as to when the cognizance of an offence can be said to have been taken by a Magistrate occurs frequently in the realm of criminal Law. It is partly because the word cognizance is not defined under the Code or any other statute and partly because there is a specific way or manner, through which alone, cognizance can be taken. 17. Judicial pronouncements are to the effect that the cognizance of an offence can be said to have been taken when the Magistrate applies his mind to the facts of the case and takes a decision for proceedings under Ss. 200 and other provisions of Chapter XV of the Code. 18. There is substantial clarity from the precedents, as well as treatises on Criminal Law, on specific facets of the question as to whether a Magistrate can be said to have taken cognizance of the offence. 200 and other provisions of Chapter XV of the Code. 18. There is substantial clarity from the precedents, as well as treatises on Criminal Law, on specific facets of the question as to whether a Magistrate can be said to have taken cognizance of the offence. The first is that if the Magistrate applied his mind, analysed the facts of the case to a considerable extent, and decided to initiate steps under Chapter XV of the Code, commencing with recording the sworn statement of the complainant, under Sec. 200, it can indeed be said that cognizance of the offence has been taken by him. It is well settled that if the application of mind is only to a limited extent, and instead of taking recourse to the procedure under Chapter XV of the Code, he has chosen to refer the matter to the Police under Sec. 156(3), it cannot be said that cognizance was taken by him. The statement of Law on this aspect by Justice Das Gupta of the Calcutta High Court, way back in the year 1950 in Superintendent and Remembrancer of Legal Affairs, W.B. v. Alani Kumar, (A.I.R. (37) 1950 Cal 437) was quoted with approval by the Hon'ble Supreme Court and other High Courts. Even now, it is treated as authoritative. It reads, What is taking cognizance has yet to be defined in the Cr. P. C. and I have no desire to attempt to define it. It seems clear, however, that before it can be said that any Magistrate has taken cognizance of any offence u/S. 190(1)(a), Cr. P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding u/S. 200 and thereafter sending it for inquiry and report u/S. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Secs. of this Chapter, but for taking action of some other kind, e.g. ordering investigation...u/S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. 19. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Secs. of this Chapter, but for taking action of some other kind, e.g. ordering investigation...u/S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. 19. This was quoted with approval in R.R. Chari v. The State of Uttar Pradesh A.I.R. (38) 1951 SC 207 and Tula Ram v. Kishore Singh (: A.I.R. 1977 SC 2401) and many others. 20. There is also authority for the proposition that if the Magistrate chooses to refer the matter under Sec. 156(3), he cannot express his mind, nor should he interfere with the functions of the police. For all practical purposes, he shall simply forward the complaint or pass on the information to the concerned S.H.O. without any direction as to the nature of the steps to be taken. If a direction is issued by the Magistrate to the police to register F.I.R., it amounts to usurpation of the functions of the police by the Magistrate (See Ganesh Dass and others v. State of Kerala) 1996 Cri LJ 612 and the matter stands taken away from the purview of Sec. 156(3) of the Code." 9. Learned Counsel for the petitioner further relied on a decision reported in Tula Ram and others vs. Kishore Singh, = (1977) 4 SCC 459 . wherein the Hon'ble Apex Court held that: "14. In these circumstances, the inescapable conclusion is that in the present case, the Magistrate had not taken cognizance of the case and ordered an investigation by the police under Sec. 156(3) before applying his mind to the complaint. This being the position, it was always open to the Magistrate to take cognizance of the complaint and dispose of it according to Law, that is to say, according to the provisions of Ss. 190, 200 and 202. In view of the facts in the present case, he was prohibited from directing any investigation, but he could take other steps. Even in the case of Abhinandan Jha and Ors. v. Dinesh Mishra (supra), this Court, while holding that the Magistrate has supervisory power over the police and it was not open to him to direct the police to file a chargesheet, observes that the Court was not powerless to dispose of the complaint according to Law. Even in the case of Abhinandan Jha and Ors. v. Dinesh Mishra (supra), this Court, while holding that the Magistrate has supervisory power over the police and it was not open to him to direct the police to file a chargesheet, observes that the Court was not powerless to dispose of the complaint according to Law. In this connection, this Court observed as follows: We are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for, sending up an accused for trial, it is open to the Magistrate to direct the police to file a chargesheet. But, we may make it clear that this is not to say that the Magistrate is absolutely powerless because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to Law." 10. On the other hand, the learned Assistant Public Prosecutor placed reliance on a decision reported in Yashodhan Singh vs State of Uttar Pradesh, 2023 INSC 652 . wherein the Hon'ble Apex Court held that: "28. It is in light of the aforesaid judgments that we have to consider the judgment of this Court in Jogendra Yadav, which is the basis of the arguments of Sri Nagamuthu, the learned senior CounselCounsel appearing for the appellants. As already noted, in the said case, the Additional Sessions Judge had issued notice to the appellants therein under Sec. 319 of the Cr.P.C. to show cause as to why they should not be added as accused and an opportunity was provided to the appellants therein to file their reply and after being heard, the summoned appellants therein were added as accused to the proceedings. It was nobody's case that they were not heard before such a summoning order was passed. Despite that, the said order was challenged, and ultimately, the matter came up before this Court. This Court, in the course of its judgment, referred to the object and purpose of Sec. 319 of the Cr.P.C. and distinguished it from Sec. 227, which provides for discharge by observing as under - "6. Despite that, the said order was challenged, and ultimately, the matter came up before this Court. This Court, in the course of its judgment, referred to the object and purpose of Sec. 319 of the Cr.P.C. and distinguished it from Sec. 227, which provides for discharge by observing as under - "6. On a perusal of Sec. 319 of the Cr.P.C., it is apparent that a person who is not an accused may be added as an accused only when it appears from the evidence that he has committed any offence for which he could be tried together with the accused. The Sec. says that in such an eventuality, the Court "may proceed against such person" for the offence which he appears to have committed. In other words, a person who is not an accused becomes liable to be added where he appears to have committed an offence. Thereupon, the effect is that the Court may proceed against such a person." 11. It is appropriate to refer to Sec. 156 of Cr.P.C., which reads as follows: "156. Police Officer's power to investigate cognizable case: (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have the power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called into question on the grounds that the case was one in which such officer was not empowered under this Sec. to investigate. (3) Any Magistrate empowered under Sec. 190 may order such an investigation as above mentioned." 12. Sec. 156(3) authorizes the Magistrate if he chooses to refer the matter to the investigation by the Police Officer. In such a case, if the learned Magistrate feels that it is a matter to be investigated by the Police, he should have forwarded the complaint as per the provisions prescribed under Sec. 156(3) of Cr.P.C. But, in this case, the learned Magistrate has not opted to forward the complaint under Sec. 156(3) Cr. P.C. for investigation. Otherwise, when the learned Magistrate does not intend to forward the complaint under Sec. 156(3) of Cr.P.C., the learned Magistrate should have followed the procedure contemplated in Chapter-XV of the Cr. P.C. for investigation. Otherwise, when the learned Magistrate does not intend to forward the complaint under Sec. 156(3) of Cr.P.C., the learned Magistrate should have followed the procedure contemplated in Chapter-XV of the Cr. P.C. by recording the statements of the complainant and witnesses, if any. Without following such procedure, the learned Magistrate ordered notice to the respondents to hear the maintainability of the complaint. The learned Magistrate should have followed the procedure as contemplated under the provisions of Cr.P.C. as referred supra. 13. Considering the facts and circumstances, this Court accepts the contention of the learned Counsel for the petitioner, and the impugned order suffers from illegality. 14. In the said facts of the case, the order dtd. 11/5/2023 in C.F. No.1782 of 2023 on the file of learned I Additional Chief Metropolitan Magistrate, Vijayawada is set aside, and the learned Magistrate is directed to proceed with the matter as contemplated under the provisions of Cr.P.C. and with reference to the observations made in the above decisions and the guidelines given in A. Bala Prasad's case. 15. Accordingly, the Criminal Revision Case is disposed of. Pending miscellaneous petitions, if any, shall stand closed.