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2024 DIGILAW 1547 (AP)

S. Krishnaiah v. B. Mallika Rjuna

2024-11-18

V.R.K.KRUPA SAGAR

body2024
ORDER: V R K KRUPA SAGAR, J. 1. This Criminal Revision Case, under sections 397 and 401 of the CrPC, is filed by the petitioner impugning the order dated 23.04.2021 in Crl.M.P.No.56 of 2021 in C.F.No.81 of 2021 of learned IV Additional Judicial Magistrate of the First Class, Tirupati, Chittor District. 2. Heard arguments of Sri D.Purna Chandra Reddy, the learned counsel for petitioner and learned Assistant Public Prosecutor for respondent No.2/State. 3. Notice on respondent No.1 was served on 26.08.2023, none entered appearance. 4. On demonstration of illegality or impropriety or the correctness or otherwise of the proceedings taken up before the courts below, law calls for interference of this court in revisional jurisdiction. The present case at hand could be stated to be an example of all incorrect proceedings taken up by the court below. A brief narration of what happened before the court below would be sufficient for disposal of this revision. 5. For a tractor with its trolly bearing registration No.AP 03 CL 1204, originally, Sri B.Mallikarjuna is stated to be the registered owner. On 12.07.2018 for a valid consideration of Rs.5,00,000/-, it was stated to have been sold to Sri S.Krishnaiah. Necessary documentation was done, and the transfer took legal effect and registration certificate for the vehicle was issued in the name of the purchaser. Thereafter, the purchaser Sri S.Krishnaiah obtained a policy of insurance from Oriental Insurance Company. The said S.Krishnaiah filed a complaint against his vendor/ Sri B.Mallikarjuna alleging an offence under section 379 IPC. He filed that complaint before learned IV Additional Judicial Magistrate of the First Class, Tirupati on 19.01.2021. In the complaint, it is stated that the accused/vendor was a rowdy sheeter and after the whole transaction was over, he was demanding him for an additional money of Rs.2,00,000/- and was blackmailing him. On 15.12.2020, the vehicle was found to be missing. The victim / de facto complainant went in search of it and found the vehicle at the house of the accused in Pillamedu Village. The victim approached the police but there was no needed response, and he lodged his representation in Spandana cell in Tirupati District on 21.12.2020 and they requested him to approach the court and therefore on 19.01.2021, he filed a complaint before learned Magistrate. The victim approached the police but there was no needed response, and he lodged his representation in Spandana cell in Tirupati District on 21.12.2020 and they requested him to approach the court and therefore on 19.01.2021, he filed a complaint before learned Magistrate. Along with the complaint, he had annexed copies of the original sale letter, original certificate of registration, original insurance policy and a copy of the complaint, he lodged at Spandana. 6. Since the offence alleged is one under section 379 IPC/theft, it was expected on part of the learned Magistrate to enquire into and take decision to take cognizance or otherwise and in the event of taking cognizance to issue summons to the accused and act in terms of the procedure that is available for cases instituted otherwise than on police report which includes sections 244 to 247 of the CrPC, 1973. As is clear from the record, the learned Magistrate did not take any such steps. He did not enquire into the complaint and did not take cognizance of any offence. He did not summon the accused. He did not examine any one and he left the complaint as a complaint. He did not even register the complaint assigning a specific number to it and it remained in the office of the learned Magistrate as CF.No.81 of 2021. 7. However, a few things have happened aside from the complaint. The complainant filed an application under section 94 CrPC and that was registered as Crl.M.P.No.20 of 2021. The prayer portion in the said petition reads as below “It is therefore prayed that the Hon’ble court may be pleased to issue warrant of search and seizure and the tractor and trolly bearing registration No.AP 03 CL 1203 by the concerned police for production before this Hon’ble court and pass appropriate orders accordingly.” 8. Learned Magistrate entertained that petition and passed an order dated 22.01.2021 after recording reasons. In the said order, the learned Magistrate recorded that on perusing the averments in the complaint and on verification of all the documents filed, he was satisfied that the complainant was the owner of the vehicle and section 94 CrPC permits the issuance of search warrant where the property involved was subject matter of a theft. Therefore, he found merit in the petition. Therefore, he found merit in the petition. Though section 94 CrPC speaks about giving search warrants to police officer and though the prayer in the petition of the complainant was for issuance of a search and seizure warrant to a competent police officer, the learned Magistrate did not issue search warrant to the police, instead he appointed a practicing lawyer as a commissioner and entrusted the warrant to him to conduct search and seizure and gave a direction to police to assist him. Then the Advocate Commissioner took the assistance of the police and went to the house of the accused and found the tractor and trolly and a few other items connected to them. He found stiff resistance from the accused and his family. However, he was able to complete his task in various spells. On 23.01.2021, he was able to procure the tractor and on 25.01.2021, he had to return empty handed. On 26.01.2021, he was able to secure the trolly and two cage wheels and a plough. He brought them to the court and lodged them in the court premises and handed them over to the security of the court and towards his execution of the warrant he filed a report. 9. Now that the property that was sought by the learned Magistrate was in his court premises. Then the learned Magistrate found it difficult to hold it there and directed the police to keep the seized articles at the police station. Be it noted so far there was no crime registered by the police and there was no offence taken cognizance of by the learned Magistrate. 10. The next phase of the sequence and event is that the complainant moved an application under section 451 CrPC seeking interim custody of the tractor and trolly and its accessories. This application was registered as Crl.M.P.No.56 of 2021. This time, the learned Magistrate issued notice to the accused. Accused came and filed his objections. After listening to the advocates on both sides, by an order dated 23.04.2021, the learned Magistrate passed the order which is impugned in this revision. 11. While the complainant was seeking interim custody of the seized goods, the learned Magistrate who was expected to either granting or refusing the same, what he did was somewhat curious. After listening to the advocates on both sides, by an order dated 23.04.2021, the learned Magistrate passed the order which is impugned in this revision. 11. While the complainant was seeking interim custody of the seized goods, the learned Magistrate who was expected to either granting or refusing the same, what he did was somewhat curious. He thought that restoring this property to the accused appears to be correct to him and granted the custody to the accused. In his detailed order, he recorded that accused disputed the allegations of the complainant about theft. Since, in the opinion of the learned Magistrate, accused disputed the ownership, the criminal court cannot decide ownership and only a civil court is entitled to decide them. Taking such a view, it returned the goods to the accused. It further said that the person before him cannot be called as accused since no crime was registered and the court also did not take cognizance against the accused. It stated that it made some observations while it entertained petition under section 94 CrPC that there was a prima facie case against accused but in his view that does not hinder him from passing the impugned order. 12. Sri D.Purna Chandra Reddy, the learned counsel for petitioner conveying the agony of the revision petitioner submits that the impugned order was most unjustified as the petition filed by the revision petitioner seeking custody was not only dismissed but the seized property was given to the accused/R1 which is unfair without enquiring into the offence alleged in the complaint. 13. As stated earlier, despite service of notices, none entered appearance for R1. Learned APP, Sri A.Sai Rohit in all fairness submits that the procedure adopted by the court below is totally unknown to the law. 14. On receiving a complaint, the primary duty of the learned Magistrate was to see whether it discloses any offence or not. If the facts disclosed indicate offences, then he could take a decision either to proceed further and make due enquiry. Alternatively, the learned Magistrate, without taking cognizance, could forward the complaint to police for registration of a crime and investigate into it. The learned Magistrate did nothing of these. If the facts disclosed indicate offences, then he could take a decision either to proceed further and make due enquiry. Alternatively, the learned Magistrate, without taking cognizance, could forward the complaint to police for registration of a crime and investigate into it. The learned Magistrate did nothing of these. Even by what was mentioned in the impugned order, it is crystal clear that the learned Magistrate had earlier opined that there was a crime committed since a vehicle was taken away from its registered owner and it was found at the house of the accused. It thought that the tractor and trolly and its accessories are properties of theft and therefore their production was felt necessary. Even after accomplishing that he did not take up the complaint. He entertained an application for interim custody of the complainant and dismissed it and granted custody to the accused. The farcical attitude and the dilly-dally of the judicial mind reflected through these orders of the learned Magistrate. Without enquiring into the allegations of crime placed before him through the complaint and taking up various proceedings with reference to the property against which the offence was allegedly committed is irregular and illegal and cannot be sustained. Hence, the impugned order is set aside. 15. In the result, this Criminal Revision Case is allowed. Learned IV Additional Judicial Magistrate of the First Class, Tirupati is directed to take up CF.No.81 of 2021 and proceed with it in accordance with law and he must commence his proceedings as expeditiously as possible and at any rate on or before 12.12.2024. The revision petitioner/ Sri S.Krishnaiah is directed to appear along with his counsel before the learned Magistrate on 12.12.2024 who should thereupon commence the legal proceedings in accordance with law. Registry is directed to provide a copy of this order to the revision petitioner within two weeks.