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2024 DIGILAW 1066 (AP)

Mandela Trimurthulu v. State Of Andhra Pradesh

2024-08-12

V.SUJATHA

body2024
ORDER : Since the present three (03) Criminal Petitions are raised out of the F.I.R.No.140/2018 on the file of the Station House Officer, Palakol Rural Police Station, Palakol, West Godavari District, A.P., and to quash the same, all these matters are taken up together and disposed of by way of this Common Order. 2. The petitioners in Crl.P.No.10996 of 2018 are arrayed as A1 and A3, the petitioner in Crl.P.No.10857 of 2018 is arrayed as A2 and petitioners in Crl.P.No.10889 of 2018 is arrayed as A4 to A6 in F.I.R.No.140/2018 on the file of the Station House Officer, Palakol Rural Police Station, Palakol, West Godavari District, A.P., and the offences alleged against them are under Sections 468, 471, 477A 409, 420 r/w 34 of IPC. 3. The brief facts of the prosecution case is that the petitioners herein are the President, Secretary, Sales Man and NMRs of Gorintada Primary Agricultural Co-operative Society Limited, Gorintada, Palakol Mandal, West Godavari District and have been discharging their duties without any complaint. While so, the District Co-operative Officer vide proceedings dated 14.12.2015 ordered for enquiry under Section 51 of the A.P. Co-operative Societies Act into the affairs of the Society; in pursuance of the same, the Enquiry Officer has conducted an enquiry and submitted a report recommending to take action against the petitioners herein / accused. Basing on the said enquiry report, the Deputy Registrar of Co-operative Societies has issued notice dated 03.03.2018 directing the Managing Committee to submit an explanation as to why the Committee should not be superseded under Section 34(1) of the A.P. Cooperative Societies Act. Accordingly, the Committee has submitted its explanation, but, being not satisfied with the said explanation, the Deputy Registrar of Co-operative Societies has passed an order on 18.04.2018 by superseding the Society. The same was challenged by the Committee by filing W.P.No.17066 of 2018 and this Court passed the following order, on 02.05.2018: “It is contended by the leaned counsel for the petitioner that the impugned action is contrary to the provisions of sub-Section 6 of Section 34 of the A.P. Cooperative Societies Act. 1964 (for brevity, “the Act”) and that, before resorting to the impugned action, under Section 34 (1) of the Act, the respondent authorities did not consult the financing bank. 1964 (for brevity, “the Act”) and that, before resorting to the impugned action, under Section 34 (1) of the Act, the respondent authorities did not consult the financing bank. In support of his contention, learned counsel for the petitioner placed reliance on a judgment of this Court in Appanna Suribabu and others V. Registrar of Cooperative Societies, Peddapuram and others 1999(6) ALT 239 .” In view of the above, there shall be interim suspension as prayed for.” 4. The grievance of the petitioners herein is that while the above said Writ Petition is pending, even without reaching the finality, relying on the enquiry report, the 2nd respondent herein has submitted a Complaint to the Station House Officer, Palakol Rural Police Station on 14.09.2018 alleging that the enquiry report reveals the misappropriation of funds in the Society. Basing on which, a case in F.I.R.No.140 of 2018 has been registered against the petitioners for the offences under Sections 468, 471, 477-A , 409, 420 r/w 34 IPC. 5. Heard learned counsel for the petitioners and learned Assistant Public Prosecutor appearing for the respondent No.1. Perused the material on record. 6. Mr.Turaga Sai Surya, learned counsel for the petitioners submits that no case can be registered on the basis of the enquiry report, since the enquiry report is not the conclusive proof and particularly when no action under Section 60 of the A.P.C.S. Act is initiated on the basis of the said enquiry, as such initiation of prosecution basing on the enquiry report is nothing but abuse of process of law. He further contended that no sanction has been obtained from the competitive authority i.e., the Registrar before initiating the criminal proceedings as required under Section 83(3) of the Act, therefore, prayed to quash the F.I.R. against the petitioners. 7. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 8. The decision rendered by the Hon’ble Apex Court in State of Haryana and others v. Bhajanlal and others, AIR 1992 SC 604 is considered as the guiding torch in the application of Section 482. At paras 102 and 103, the circumstances are spelt out as follows; “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 9. Having heard the submissions made by the learned counsels and on perusal of the material available on record, the point for determination that arises in this case is as follows: Whether there are any justifiable grounds for quashment of the proceedings against the Petitioners/ accused 1 to 6 in F.I.R.No.140/2018 on the file of the Station House Officer, Palakol Rural Police Station, Palakol, West Godavari District, A.P., under Sections 468, 471, 477A 409, 420 r/w 34 of IPC? 10. 10. Before going to the discussion, prima facie considering the grounds raised by the learned counsel for the petitioners, it is appropriate to extract relevant provision of law under A.P. Co-operative Societies Act, 1964, for better appreciation. 11. “Section 51: Inquiry: The Registrar, may of his own motion and shall, on the application of a society to which the society concerned is affiliated, or of not less than one third of the members of the Committee, or of not less than one fifth of the total number of members of the society, hold an inquiry or direct some person authorised by him by an order in this behalf to hold an inquiry into the constitution, working and financial condition of a society. Such inquiry shall be completed within a period of four months and the report of inquiry along with the findings of the Registrar thereon shall be communicated to the managing committee of the society. It shall be the responsibility of the managing committee to place the inquiry report before the General Body or Special General Body convened for the purpose for its information, within a period of one month from the communication of the inquiry report by the Registrar. The Registrar shall be competent to initiate action under the provisions of this Act, if the committee fails to take action as aforesaid: Provided that notwithstanding anything contained in this Act and the Rules made thereunder, the bye laws of a society and the action of the society in placing the inquiry report alongwith the findings of the Registrar, the Registrar shall not be precluded from taking follow up action as may be required on the basis of inquiry report : Provided further that such action shall not be nullified even if the General Body of the Society passes a resolution negativing the findings of the inquiry: Provided also that the Registrar may for reasons to be recorded in writing extend the period of four months for completion of inquiry for a further period not exceeding two months. Explanation:— For the purposes of this section, “Managing Committee” includes a Committee constituted under Section 31(l)(a), and a person-incharge appointed under Section 32(7)(a) and also a special officer appointed under Section 34 of the Act.]” 12. Section 61. Explanation:— For the purposes of this section, “Managing Committee” includes a Committee constituted under Section 31(l)(a), and a person-incharge appointed under Section 32(7)(a) and also a special officer appointed under Section 34 of the Act.]” 12. Section 61. Disputes which may be referred to the Registrar:- Notwithstanding anything in any law for the time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises- (a) among members, past members and persons claiming through members, past members and deceased members ; or (b)between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society ; Or (c)between the society or its committee, and any past committee, any officer, agent or employee, or any past officer, past agent, or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent or deceased employee of the society ; or (d)between the society and any other society, such dispute shall be referred to the Registrar for decision. Explanation: - For the purposes of this sub-section a dispute shall include (i)a claim by a society for any debt or other amount due to it from a member, past member, the nominee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or not ; (ii)a claim by surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due to be admitted or not ; (iii)a claim by a society against a member, past member, or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property ;[x x x] [Omitted by Andhra Pradesh Act No. 14 of 1966.] (2)If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, such question shall be decided by the Registrar. (3)[ Every dispute relating to, or in connection with, any election to a committee of a society shall be referred for decision to the Tribunal having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final.] [Substituted by Act No. 22 of 2001, dated 25.4.2001.] Section 83. Cognizance of offences:— (1) No court inferior to that of a Magistrate of the first class or a Metropolitan Magistrate shall try any offence under this Act. (2) Every offence under this Act shall, for the purpose of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be deemed to be cognizable. (3) No prosecution shall be instituted under this Act without the previous sanction of the Registrar. 13. As per Section 83(3) of the Act, it is clear that without previous sanction of the Registrar, no prosecution shall be instituted. (3) No prosecution shall be instituted under this Act without the previous sanction of the Registrar. 13. As per Section 83(3) of the Act, it is clear that without previous sanction of the Registrar, no prosecution shall be instituted. But, however, in the case on hand, on a perusal of the material paper filed by the petitioner it can be observed that the District Cooperative Officer vide proceedings dated 14.12.2015 ordered for enquiry under Section 51 of the A.P. Cooperative Societies Act into the affairs of the Society and in pursuance of which, enquiry officer had conducted an enquiry and submitted enquiry report; basing on the said enquiry report, the Deputy Registrar of Co-operative Societies has issued notice dated 03.03.2018 directing the Managing Committee to submit an explanation as to why the Committee should not be superseded under Section 34(1) of the A.P. Cooperative Societies Act. For which, the Committee has submitted an explanation being not satisfied with the said explanation submitted by the Managing Committee, the Deputy Registrar of Co-operative Societies has passed an order on 18.04.2018 by superseding the Society. Challenging which the Managing Committee has filed the W.P.No.17066 of 2018 wherein this Court was pleased to grant an interim relief suspending the order dated 18.04.2018. It is also an admitted fact that the said Writ Petition, which in fact, is pending for adjudication and even without reaching the finality, basing on the same enquiry report dated 20.04.2016, the 2nd respondent has filed a complaint as against the Managing Committee on 14.09.2018 before the Station House Officer, Palkol Rural Police Station alleging that the enquiry report reveals misappropriation of funds in the Society. 14. Thus, in view of Section 83(3) of the Act, there is no such material to show that previous sanction has been obtained from the Registrar, before initiating the criminal proceedings against the petitioners herein. 14. Thus, in view of Section 83(3) of the Act, there is no such material to show that previous sanction has been obtained from the Registrar, before initiating the criminal proceedings against the petitioners herein. Though the complaint dated 14.09.2018, basing on which F.I.R. was registered, reveals that the District Collector, West Godavari District has sanctioned Prosecution against the petitioners, there is no material to show that specific delegation of powers conferred on the District Collector and hence, viewed from any angle and also in the light of the statutory provisions mentioned above, which had been amended from time to time, this Court is of the prima facie considered opinion that institution of criminal proceedings against the petitioners, without prior sanction, is without jurisdiction and the impugned proceedings are liable to be quashed. 15. Accordingly, these three Criminal Petitions are allowed, by quashing the F.I.R.No.140/2018 on the file of the Station House Officer, Palakol Rural Police Station, Palakol, West Godavari District, A.P. against the petitioners. As a sequel, miscellaneous applications pending, if any, shall also stand closed.