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2024 DIGILAW 1201 (AP)

K. C. Reddepa Naidu v. State Of Andhra Pradesh

2024-08-27

V.SUJATHA

body2024
ORDER : This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the order dated 21.03.2018 of the V Additional Judicial First Class, Magistrate, Tirupathi in CF.No.342/2018 and the consequential registration of FIR No.99 of 2018 on the file of Tiruchanuru Police Station, Tiruchanuru, Chittoor , District for the offences punishable under Sections 406, 409, 417, 418, 420, 447 of Indian Penal Code (for short “IPC”) read with 120(B) IPC. 2. The petitioner herein is the accused No.1. Respondent No.2 herein is the defacto complainant. The 2nd respondent herein has filed a private complaint under Section 200 of Cr.P.C., before the V Additional Judicial First Class Magistrate, Tirupathi against the petitioner herein and 36 others stating that the 2nd respondent is the wife of late Anupati Kaleshwar and is a resident of Penukonda; that her husband died on 15.03.2012 leaving behind the 2nd respondent, their minor daughter and her mother in law to succeed to her husband’s estate as Class-I heirs; that one S. Sathyanarayana, D. Lakshminarayana, B. Sreenivasulu represented by their General Power of Attorney Holder i.e. the petitioner herein sold plots (scheduled Nos.1 to 22 mentioned in the complaint) in favour of husband of the 2nd respondent vide two registered sale deeds i.e. Doc.No.4629 and 4630 of 2009, dated 18.11.2009. The complainant further alleged that M/s. Venkateswara Housing Pvt., Ltd., represented by its Managing Director K. Lakshi Narasimha Rao sold plots (scheduled Nos.23 to 62 mentioned in the complaint) in favour of husband of the 2nd respondent vide registered sale deed i.e. Doc.No.4631 of 2009, dated 18.11.2009, in spite of having the knowledge and notice that the managing director of M/s. Venkateswara Housing Pvt., Ltd., has cancelled the General Power of Attorney executed in favour of the petitioner herein. From the date of sale of the aforesaid plots in favour of the 2nd respondent’s husband, the husband of the 2nd respondent was inducted into possession and enjoyment. After the death of the complainant’s daughter, the complainant and her daughter are in peaceful possession and enjoyment of the plots (scheduled Nos.01 to 62 mentioned in the complaint). 3. From the date of sale of the aforesaid plots in favour of the 2nd respondent’s husband, the husband of the 2nd respondent was inducted into possession and enjoyment. After the death of the complainant’s daughter, the complainant and her daughter are in peaceful possession and enjoyment of the plots (scheduled Nos.01 to 62 mentioned in the complaint). 3. It is further alleged in the complaint that accused No.2 is a close associate of the petitioner herein; that upon the demise of the complainant’s husband, with a fraudulent and dishonest intention conspired to cheat the complainant and they have fabricated an agreement of sale in favour of 2nd accused. Though the alienations of the property is in favour of complainants’ late husband are reflected in the encumbrance certificate, even without impleading the complainant and other heirs as party, the accused No.2 in collusion with accused No.1 has filed a suit against accused No.1/petitioner herein, in O.S.No.59 of 2015 on the file of the III Additional District Judge, Tirupathi and obtained an exparte decree; subsequently, the accused No.2 filed E.P.No.9 of 2015 and obtained a sale deed through the process of court. Again, in the exparte proceedings in E.A.No.116 of 2016, the accused No.2 has obtained the delivery of the property; and thereafter both the accused No.1 and 2 conspired and have fabricated nominal sale deeds in favour of accused Nos. 3 to 37. It is further contended that though all the accused have knowledge that if alienation is made even subsequent to the alleged agreement of sale, the subsequent purchasers shall be added as parties to the suit the 2nd accused had failed to add the complainant and other heirs as parties to the suit with a fraudulent intention. The petitioner herein is guilty of committing breach of trust as he has executed sale deed in favour of complainant’s husband with respect to plots (scheduled Nos.1 to 22 mentioned in the complaint). 4. The complainant has further stated that she has filed an application before the III Additional District Judge, Tirupathi under Order 21 Rule 99 read with Rule 101 Cr.P.C., in E.A.No.71 of 2017 upon knowing that the accused have resorted to cheat the complainant and other heirs with respect to the schedule mentioned property. 4. The complainant has further stated that she has filed an application before the III Additional District Judge, Tirupathi under Order 21 Rule 99 read with Rule 101 Cr.P.C., in E.A.No.71 of 2017 upon knowing that the accused have resorted to cheat the complainant and other heirs with respect to the schedule mentioned property. The act of the accused to cause wrongful loss to complainant is not a civil dispute but is an organized crime committed to cheat innocent persons. It is further stated in the complaint that though the complainant has preferred similar complaint before the Superintendent of Police, Tirupathi Urban District who endorsed the same for investigation, no action was initiated and as such, she was constrained to file the private complaint under Section 200 Cr.P.C. against the accused before the V Additional Judicial First Class Magistrate Tirupathi. 5. Upon receiving the said complaint filed by the 2nd respondent herein, the V Additional Judicial First Class Magistrate, Tirupathi has forwarded the private complaint to the Station House Officer, Tiruchanur, Chittoor District under Section 156(3) of Cr.P.C., for registration of case vide order dated 21.03.2018 in C.F.No.342 of 2018. Pursuant to the same, the Station House Officer, Tiruchanur has registered an FIR vide FIR No.99 of 2018 against 37 accused for the offences punishable under Sections 406, 409, 417, 418, 420, 447 of IPC. The present petition has been filed seeking to quash the order dated 21.03.2018 passed by the V Additional Judicial First Class Magistrate, Tirupathi and the consequential case registered in FIR No.99 of 2018. 6. Learned counsel for the petitioner would argue that the learned Judge has not applied his mind while passing the impugned orders dated 21.03.2018 as he has not taken into consideration whether there are prima facie allegations and material for the alleged offence warranting any investigation by the Police under Section 156(3) of Cr.P.C. It is further contended that the learned Judge has failed to see that the power under Section 156(3) Cr.P.C., can be exercised only if the complaint discloses the commission of the offence. He further stated that as the learned Judge has committed a serious illegality in directing the Police to register a crime, which amounts to taking cognizance of an offence without even prima facie enquiry, the order dated 21.03.2018 in C.F. No.342 of 2018 passed by the V Additional Judicial First Class Magistrate, Tirupathi is liable to be quashed. 7. Refuting the arguments of learned counsel for the petitioner, learned counsel for respondent No.2 submits that the petitioner has committed the offences alleged against him and there are specific overt acts attributed against the petitioner. He would further submit that while forwarding a complaint under Section 156(3) Cr.P.C. at the pre-cognizance stage, a Magistrate need not give any elaborate reasons. As there are no grounds to interfere with the proceedings and as prima facie case is made out against the petitioner, he requested to dismiss the criminal petition. 8. When the criminal petition came up for hearing on 12.10.2018, this Court has passed the following interim order: “…There shall be interim stay of all further proceedings in Crime No.99 of 2018 on the file of Tiruchanuru Police Station, Tiruchanur, Chittoor, for a period of three months, as the dispute is predominantly of civil nature and claim petitions under Order XXI Rule 99 C.P.C. are pending for adjudication in E.P.No.9 of 2015 in O.S.No.59 of 2015, where, the rights of the parties can be decided prima facie.” 9. Learned Public Prosecutor conceded to the arguments advanced by learned counsel appearing for respondent No.2. 10. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point that arises for consideration is as follows: “Whether the order dated 21.03.2018 in C.F.No.342 of 2018 passed by the learned V Additional Judicial First Class Magistrate, Tirupathi and the F.I.R.No.99 of 2018, filed against the petitioner for the offences punishable under Sections 406, 409, 417, 418, 420, 447 of IPC are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 11. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 12. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: 13. In “R.P. Kapur v. State of Punjab, AIR 1960 SC 866 ”, the Apex Court laid down the following principles: (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 14. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. 14. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar, AIR 1990 SC 494 ” 15. In “State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: (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. (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 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. 16. Keeping in view the above principles, I would like to examine the case on hand. 17. In the instant case, there is no dispute that the Complainant filed a private complaint under Section 200 Cr.P.C before the learned V Additional Judicial First Class Magistrate, Tirupati which was forwarded to Tiruchanur Police Station under Section 156(3) Cr.P.C. Sub-Section (3) of Section 156 Cr.P.C. empowers a Magistrate to order a Police enquiry in a case where Magistrate does not himself issue process at once and it enables the Magistrate to order the investigation of an offence of which he may have taken cognizance under Section 190. The Magistrate can also forward the complaint for investigation even without the necessity of examination of the Complainant. The Magistrate can also forward the complaint for investigation even without the necessity of examination of the Complainant. Now the point for consideration is whether a Magistrate can simply forward the complaint to Police for investigation under Section 156(3) Cr.P.C., or is any duty cast on him to record reasons for such forwarding the complaint. For better understanding, Section 156 of Cr.P.C., is hereunder extracted: “156. Police Officer's power to investigate cognisable case. (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have 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 in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned..” 18. Upon receiving the private complaint filed by the 2nd respondent herein, the learned Magistrate has passed the following order in C.F.No.342 of 2018 on 21.03.2018: “Complainant is present. Heard for the complainant’s counsel. On perusal of the record and submissions placed by the learned counsel for the complainant this Court is satisfied to forward this complaint u/S 156(3) CrPC to the concerned PS for registration and investigation… 19. The scope of Section 156(3) of Cr.P.C came up for consideration before the Hon’ble Supreme Court in several cases. The Apex Court in Maksud Saiyed Vs. State of Gujarat,. (2008) 2 SCC (Cri) 692, has examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order. However, a detailed expression of his views is neither required nor warranted. In the impugned order dated 21.03.2018, this Court finds no reasons for ordering such investigation. 20. The direction under Section 156(3) is to be issued only after application of mind by the Magistrate and when the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine the existence of sufficient ground to proceed.(The Apex Court in Ramdev Food Products Private Limited Vs. State of Gujarat, Criminal Appeal No.600 of 2007) 21. The same principle has been reiterated by the Hon’ble Supreme Court of India in Mrs.Priyanka Srivastava and another V. State of U.P. and others, (2015) 6 SCC 287 , stating that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. The Magistrate has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. 22. Even in the case on hand, the learned Magistrate has mechanically referred the private complaint exercising the powers under Section 156(3) of Cr.P.C., but has failed to give any reason as to why such investigation has been ordered. Merely stating that the Magistrate has reviewed the complaint, examined the documents, heard the complainant and feeling it fit that a further investigation would be necessary, is insufficient. The order must also express the motive behind the Magistrate’s decision to direct an investigation under Section 156(3) of the Criminal Procedure Code. Merely stating that the Magistrate has reviewed the complaint, examined the documents, heard the complainant and feeling it fit that a further investigation would be necessary, is insufficient. The order must also express the motive behind the Magistrate’s decision to direct an investigation under Section 156(3) of the Criminal Procedure Code. As such, this Court feels that the order dated 21.03.2018 in C.F.No.342 of 2018 passed by the learned V Additional Judicial First Class Magistrate, Tirupati is apt to be quashed. 23. Accordingly, this Criminal Petition is allowed. The order dated 21.03.2018 in C.F.No.342 of 2018 passed by the learned V Additional Judicial First Class Magistrate, Tirupati and the consequentially registered FIR No.99 of 2018, dated 09.04.2018 in the Tiruchanur Police Station are quashed with respect to the petitioner herein. The miscellaneous petitions pending, if any, shall also stand closed.