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2023 DIGILAW 967 (AP)

Surineni Renukaiah v. State of Andhra Pradesh

2023-07-04

NINALA JAYASURYA

body2023
ORDER : The petitioner herein, who is arrayed as Accused No.2 in C.C.No.441 of 2018 on the file of the Court of the Learned Additional Junior Civil Judge/Judicial Magistrate of First Class, Ponnur, Guntur District, filed the present quash petition. 2. Pursuant to a complaint made by the 2nd respondent herein, the Police registered F.I.R.No.189/2015 against the petitioner/Accused No.2 and his father/Accused No.1 initially for the offence punishable under Section 182 and later added Section 420 of the Indian Penal Code (for short “IPC”). In the complaint, it was alleged that Accused No.1 i.e., father of the petitioner/Accused No.2, applied for a belated Date of Birth Certificate for the purpose of Passport to Accused No.2/petitioner through Mee-Seva, Ponnur on 07.12.2014, in support of the said application, Accused No.1 and Accused No.2 submitted respective Notarized Affidavits stating that Accused No.2 was born on “11.01.1994” in Kattempudi Village, but in the enquiry it came to light that the petitioner’s date of birth was recorded in Ponnur Municipal Records as “11.01.1993” and thus it is clear that Accused Nos.1 & 2 intentionally suppressed the real truth in order to mislead the Revenue authorities with a view to obtain a false Date of Birth Certificate. The Police after conducting investigation filed a Charge Sheet, the cognizance of which was taken vide C.C.No.441 of 2018 and the same is sought to be quashed. During the course of considering the matter, it transpired that the petitioner herein along with his father/Accused No.1 filed a discharge petition vide Crl.M.P.No.7163 of 2019 under Section 239 of Cr.P.C and the same was dismissed by the Learned Magistrate on 27.06.2022. In view of the same, the petitioner herein filed I.A.No.2 of 2022 to amend the main prayer in the Criminal Petition and also to set aside the said order dated 27.06.2022. 3. Heard Mr.K.Chidambaram, Learned Senior Counsel. Also heard the Learned Assistant Public Prosecutor appearing for the respondents. 4. In view of the same, the petitioner herein filed I.A.No.2 of 2022 to amend the main prayer in the Criminal Petition and also to set aside the said order dated 27.06.2022. 3. Heard Mr.K.Chidambaram, Learned Senior Counsel. Also heard the Learned Assistant Public Prosecutor appearing for the respondents. 4. The Learned Senior Counsel submits that the petitioner herein/Accused No.2 was admitted into School by his parents by entering his date of birth as “11.01.1994” and that he continued his studies with the said date of birth and passed S.S.C., in the year 2009 with “A” Grade, Intermediate in the year 2011 with “A” Grade by securing 970 marks out of 1000 and later completed Engineering from Jawaharlal Nehru Technological University, Kakinada in the year 2018 with “A” (Excellent) Grade in Electronics & Communication Engineering and he was the Pratibha Awardee for the year 2015. He submits that the Household Card, Aadhar Card, Election Voter ID Card, Driving License, PAN Card shows the date of birth of the petitioner/Accused No.2 as “11.01.1994”. He further submits that the petitioner appeared for Group-I Services pursuant to the Notification issued by the Andhra Pradesh Public Service Commission in the year 2018 and was selected to the post of District Fire Officer. While stating that the petitioner was awarded a Gold Medal in B.Tech., and won several prizes, the learned counsel submits that in view of the pendency of the Criminal case, the future prospects of the petitioner are jeopardized. He submits that the allegations in the Charge Sheet even taken at their face value, would not attract the offences registered against the petitioner/Accused No.2 under Sections 182 or 420 of IPC. The Learned Counsel submits that the petitioner prosecuted his studies althrough with date of birth as “11.01.1994”, as mentioned in the Secondary School Certificate (S.S.C.,) issued by the Board of Secondary Education, Government of Andhra Pradesh and an application was made for Passport on the basis of the same along with other documents and in such circumstances, the question of the petitioner giving false information or committing an offence of Cheating, under any stretch of imagination would not arise. In the light of the ample material on record reflecting the petitioner’s date of birth as “11.01.1994”, the Learned Counsel contends that nothing can be attributed to the petitioner that he has given false information to the concerned authorities and even assuming without conceding, the petitioner cannot be made liable for the mistake, if any, committed by his father/Accused No.1, at the time of admission of the petitioner in School by giving the petitioner’s date of birth as “11.01.1994”. While contending that in such circumstances continuation of Criminal Proceedings against the petitioner/Accused No.2 amounts to abuse of process of Law, the Learned Senior Counsel seeks to quash the same. 5. Further, with reference to material filed along with I.A.No.2 of 2022, the Learned Counsel also submits that the complaint was lodged by the 2nd respondent with a mala fide intention. In elaboration, he submits that when the petitioner’s father/Accused No.1 applied for the Date of Birth Certificate of the petitioner/Accused No.2 through Mee-Seva to the Office of L.W.1/Respondent No.2, one Mr.M.Ramakrishna, a corrupt employee insisted for bribe and in such circumstances, the petitioner herein/Accused No.2 approached the A.C.B., Authorities, who laid a Trap and caught hold of the said Ramakrishna red-handedly while taking the bribe. The learned counsel submits that the said Ramakrishna bore grudge against the petitioner and conspired with the 2nd respondent to implicate the petitioner and his father in the present case to pressurize them to come to his terms and withdraw the A.C.B. Case. He submits that the Proceedings initiated against the petitioner are therefore liable to be quashed as they were initiated with a mala fide intention. The learned counsel in the light of the objection raised by the Learned Assistant Public Prosecutor submits that alternative remedy against the order passed by the Learned Magistrate dated 27.06.2022 is not a bar and in view of the inherent powers under Section 482 of Cr.P.C, more particularly in the facts and circumstances and to render complete Justice, the indulgence of this Court is warranted. Accordingly, he seeks to grant the relief as prayed for. The Learned Senior Counsel referring to the order dated 27.06.2022 passed in Crl.M.P.No.7163 of 2019 also submits that the Learned Magistrate failed to consider the matter with reference to the contents/allegations made against the petitioner/Accused No.2 in a correct perspective. Accordingly, he seeks to grant the relief as prayed for. The Learned Senior Counsel referring to the order dated 27.06.2022 passed in Crl.M.P.No.7163 of 2019 also submits that the Learned Magistrate failed to consider the matter with reference to the contents/allegations made against the petitioner/Accused No.2 in a correct perspective. He submits that the Learned Magistrate failed to appreciate that the allegations in the complaint and the material on record would not prima facie attract the ingredients of the offences registered against the petitioner/Accused No.2, that no case can be made out on the basis of such allegations and therefore entitled for discharge on that ground. 6. The Learned Assistant Public Prosecutor on the other hand strenuously submits that as the petition seeking discharge vide Crl.M.P.No.7163 of 2019 was dismissed, the petitioner/Accused No.2 has to work out his remedies under Section 397 of Cr.P.C, I.A.No.2 of 2022 is not maintainable and the relief to quash the Proceedings against the petitioner cannot be granted. He submits that it is not in dispute that the petitioner/Accused No.2 submitted a Notarized Affidavit mentioning the date of birth as “11.01.1994” though it is “11.01.1993” and therefore the registration of Crime against the petitioner is tenable. He further submits that the petitioner will have ample opportunity to prove his innocence by facing the Trial and there are no exceptional circumstances in the case on hand warranting interference by this Court in exercise of powers under Section 482 of Cr.P.C. Making the said submissions, the Learned Assistant Public Prosecutor urges for dismissal of the Criminal Petition. 7. In support of their submissions, learned counsel on both sides relied on the decisions, which would be discussed at the appropriate place. 8. On a consideration of the rival contentions and the material on record, the points that arise for adjudication by this Court are:- 1) Whether availability of alternative remedy against the orders dismissing the discharge petition is a bar for exercising the powers under Section 482 of Cr.P.C in the facts and circumstances of the case? 2) Whether the Proceedings initiated against the petitioner/Accused No.2 for the offences punishable under Sections 182 and 420 of IPC are liable to be quashed? 9. 2) Whether the Proceedings initiated against the petitioner/Accused No.2 for the offences punishable under Sections 182 and 420 of IPC are liable to be quashed? 9. Point No.1 : Before dealing with the objection with regard to maintainability of I.A.No.2 of 2022, it may be appropriate to state here that though the Learned Senior Counsel had raised contentions with reference to the lodging of complaint against the petitioner in view of the A.C.B. Trap against one M.Ramakrishna, this Court deems it not necessary to delve into the same and confine to the points for consideration setout above. 10. Apropos the contentions about the availability of alternative remedy of Revision under Section 397 of Cr.P.C, the legal position in the various precedents may profitably be referred to: 11. In Dhariwal Tobacco Products Limited and Others vs. State of Maharasthra and Another, (2009) 2 SCC 370 , the Hon’ble Supreme Court dealt with the issue as to whether an application under Section 482 of Cr.P.C can be dismissed only on the premise that an alternative remedy of filing a Revision Application under Section 397 of the Code is available? Aggrieved by the order of taking Cognizance of the offence and issuance of summons by the Learned Magistrate for violation of provisions of the Prevention of Food Adulteration Rules, the accused/appellants filed a petition under Section 482 Cr.P.C, which was dismissed by the High Court. In the appeal, the Hon’ble Supreme Court while referring to a catena of cases, inter alia, opined that “Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code.” 12. In Prabhu Chawla vs. State of Rajasthan & Anr., 2016 (16) SCC 30 , a Three Member Bench of Hon’ble Supreme Court was dealing with a matter, wherein the order of the High Court of Rajasthan at Jodhpur dismissing a petition filed under Section 482 of Cr.P.C holding that availability of remedy under Section 397 of Cr.P.C would make a petition under Section 482 of Cr.P.C not maintainable was under challenge. The Hon’ble Supreme Court after referring to the relevant portion in Madhu Limaye vs. The State of Maharasthra, (1977) 4 SCC 551 extensively and other cases viz., Raj Kapoor and Ors. The Hon’ble Supreme Court after referring to the relevant portion in Madhu Limaye vs. The State of Maharasthra, (1977) 4 SCC 551 extensively and other cases viz., Raj Kapoor and Ors. vs. State and Ors., (1980) 1 SCC 43 etc., at Para No.6 held as follows:- “In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more.” We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.” In the ultimate analysis of the matter, the Hon’ble Supreme Court set aside the orders passed by the High Court and remanded the matter for fresh hearing of the petitions under Section 482 of Cr.P.C. 13. Sanjay Kumar Rai vs. State of Uttar Pradesh and Another, 2021 SCC OnLine SC 367 is a case wherein the order of the High Court of Allahabad, confirming the order of the Chief Judicial Magistrate refusing to discharge the accused for the alleged offences punishable under Sections 504 and 506 of IPC was under challenge. A Three Member Bench of the Hon’ble Supreme Court in the light of the decision in Madhu Limaye’s case at Para No.16 held as follows:- “The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.” In the light of the expression of the Hon’ble Supreme Court in the decisions referred to supra, the contentions of the Learned Assistant Public Prosecutor that the petitioner has an alternative remedy against the order rejecting the discharge petition and I.A.No.2 of 2022 is not maintainable, merits no acceptance and the same are rejected. Point No.1 is accordingly answered against the respondents. 14. Point No.2:- Coming to the merits of the case, the complaint in the present case is plain and simple i.e., the father of the petitioner submitted an application through Mee-Seva for a belated Date of Birth Certificate for the purpose of the Passport of the petitioner and along with the application he and his son/petitioner submitted Notarized Affidavits stating that the petitioner was born on “11.01.1994” though as per the enquiries made by the 2nd respondent the petitioner was born on “11.01.1993”. Thus, in so far as the petitioner herein is concerned the only allegation is that a Notarized Affidavit signed by him stating the date of birth as “11.01.1994” was submitted along with the application made by his father. The material on record i.e., the S.S.C., Certificate of the petitioner issued by the Board of Secondary Education dated 27.05.2009 reflects the date of birth of the petitioner as “11.01.1994”. Likewise, the Aadhar Card of the petitioner and the Voter Identity Card dated 05.03.2014 issued by the Election Commission of India also reflects the same date i.e., “11.01.1994”. The material on record i.e., the S.S.C., Certificate of the petitioner issued by the Board of Secondary Education dated 27.05.2009 reflects the date of birth of the petitioner as “11.01.1994”. Likewise, the Aadhar Card of the petitioner and the Voter Identity Card dated 05.03.2014 issued by the Election Commission of India also reflects the same date i.e., “11.01.1994”. It is obvious that the said date of birth i.e., “11.01.1994” was recorded in the School Records of the petitioner as per the information furnished by his parents. If the petitioner submits a Notarized Affidavit by mentioning the date of birth as “11.01.1994”, which is in accordance with the School Records as also the other valid proofs of identity like Aadhar Card, Voter Identity Card, he cannot be said to have furnished false information to the 2nd respondent. What is stated by him in the Notarized Affidavit is on the basis of the above mentioned documents. Even assuming for the sake of argument that his date of birth was wrongly mentioned as “11.01.1994”, it is the parents of the petitioner who are responsible for getting the same recorded. Therefore, the petitioner cannot be made to suffer or held to be guilty of suppressing correct date of birth for the purpose of obtaining a Passport. By virtue of such an act, the petitioner would not derive any benefit. 15. Be that as it may. To attract the offence punishable under Section 182 of IPC, false information, with intent to cause public servant to use his lawful power to the injury of another person should be furnished. In the present case, as noted earlier, the petitioner has given the information about his date of birth, which is as per School Records and other documents referred to supra. Therefore the question of his furnishing false information to attract the offence under Section 182 of IPC would not arise at all. 16. Further, to attract the offence punishable under Section 420 of IPC, there should be dishonest intention or dishonest inducement of the person deceived to deliver any property to any person from the inception. Dealing with the said provision of Law, the Hon’ble Supreme Court in N.Raghavender vs. State of Andhra Pradesh, CBI, AIR 2022 Supreme Court 826 inter alia held as follows:- “46. Dealing with the said provision of Law, the Hon’ble Supreme Court in N.Raghavender vs. State of Andhra Pradesh, CBI, AIR 2022 Supreme Court 826 inter alia held as follows:- “46. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. 47. It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. 48. It is equally well-settled that the phrase “dishonestly” emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction.” 17. In Rekha Jain vs. State of Karnataka, AIR 2022 Supreme Court 2268, the Hon’ble Supreme Court while setting aside the order of the High Court dismissing the petition seeking to quash the F.I.R registered for the offence under Section 420 of IPC held as follows:- “….. As per Section 420 of IPC, whoever cheat and thereby dishonestly induces the person deceived to deliver any property to any person, can be said to have committed the offence under Section 420 of IPC. As per Section 420 of IPC, whoever cheat and thereby dishonestly induces the person deceived to deliver any property to any person, can be said to have committed the offence under Section 420 of IPC. Therefore, to make out a case against a person for the offence under Section 420 of IPC, there must be a dishonest inducement to deceive a person to deliver any property to any other person.” 18. A reading of the Charge Sheet in the present case would not disclose any allegations which would even if they are taken at their face value and accepted in its entirely do not prima facie constitute any offence or make out the case against the petitioner. This Court, under such circumstances is of the considered opinion that continuation of Proceedings against him amounts to abuse of process of Law. 19. At this juncture, it is also relevant to deal with the order passed by the Learned Magistrate dated 27.06.2022 in the petition to discharge the petitioner. The Learned Magistrate inter alia, recorded a finding that “ it came into light that A2 was born on 11.01.1993 and not on 11.01.1994 and so A1 gave false date of birth and so A1, A2 cheated the Government and as well as Government officials and secured false birth certificate to A2 and obtained Indian Passport”. If the Accused No.1 gave false date of birth, the Learned Magistrate ought to have appreciated that, the petitioner cannot be held to have cheated the Government/Government officials, more particularly as the notarized affidavit submitted by him mentioning the date of birth is as per school record. 20. Further, it is not the case of the Prosecution that the date of birth was wrongly mentioned for illegal gain. Be that as it may. In the light of the allegations, which would not attract the ingredients of offences alleged against the petitioner/Accused No.2, the Learned Magistrate should have discharged the petitioner as no case can be made out. As held by the Hon’ble Supreme Court in Union of India vs. Prafulla Kumar Samal and Another, 1979 (3) SCC 4 , while considering the discharge petition, the Trial Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the accused, the broad probabilities, total effect of evidence and documents appearing in the case and so on. In the considered opinion of this Court, the Learned Magistrate failed to exercise his powers under Section 239 of Cr.P.C in the correct perspective and therefore the Order dated 27.06.2022 in Crl.M.P.No.7163 of 2019 is not sustainable. 21. Though the Learned Assistant Public Prosecutor had drawn the attention of this Court to the Order dated 12.08.2022 passed in Crl.P.No.3119 of 2022 & Criminal Revision Case No.301 of 2022, the same is not of any aid, in view of the expressions of the Hon’ble Supreme Court referred to above, with reference to the powers under Section 482 of Cr.P.C. 22. Considering the matter in its entirety, while this Court is conscious of the legal position that powers under Section 482 of Cr.P.C have to be exercised sparingly, is of the considered opinion, invocation of the said powers, in the facts and circumstances is warranted to secure the ends of Justice and continuation of the Proceedings, in so far as the petitioner/Accused No.2 would amount to abuse of process of Law. 23. In this regard, it would be apposite to refer to the decision in CBI vs Ravi Shankar Srivastava, 2006 (7) SCC 188 . The Hon’ble Apex Court while interpreting powers of High Court under Section 482 of Cr.P.C, inter alia held as follows:- “…..…All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice………” Point No.2 is accordingly answered in favour of the petitioner. 24. For the afore going reasons, I.A.No.2 of 2022 and the Criminal Petition are allowed. The Order dated 27.06.2022 in Crl.M.P.No.7163 of 2019 passed by the Learned I Additional Judicial Magistrate of First Class, Ponnur, Guntur District, in so far as the petitioner/Accused No.2 is set aside. 25. In the result, the Proceedings in C.C.No.441 of 2018 on the file of the Court of the Learned Additional Junior Civil Judge/Judicial Magistrate of First Class, Ponnur, Guntur District, in so far as the petitioner/Accused No.2 stands quashed. As a sequel, pending applications if any shall stand closed.