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2024 DIGILAW 716 (AP)

P. Sridhar v. Station House Officer

2024-06-28

K.MANMADHA RAO

body2024
ORDER : This petition is filed under Article 226 of the Constitution of India for the following relief;- ‘to issue an order direction or writ more particularly one in the nature of Writ of Certiorari to call for records relating to FIR No.155 of 2016 on the file of 1st and consequently quash the Docket Order dated respondent Police Station 10.02.2016 in CFR No. 865 of 2016 on the file of IV Additional Chief Metropolitan and the consequential investigation in Crime No. 155 of Magistrate at Vijayawada 2016 on the file of Patamata Police Station, Vijayawada City. Krishna District against the petitioner is concerned in the interest of justice." 2. The precise case of the petitioner is that he is the Accused No.2 in Crime No. 155 of 2016 of 1st respondent. The 3rd respondent filed private complaint before the IV Additional Chief Metropolitan Magistrate at Vijayawada (in short "the trial court") alleging that his son purchased the land under Registered Sale Deed dated 08.05.2006. The Accused No.1 created an agreement of sale-cum-GPA alleged to have been executed by Danthu Lakshmi Narasimha Murthy and thereafter executed sale deed in favour of the petitioner on 29.09.2014. It is further alleged that the said Lakshmi Narasimha Murthy did not execute the document, but it was executed by committing impersonation, which is incorrect. Accused No.1 is the rightful owner of the property and all original documents have been handed over to the petitioner. When there was interference in possession of the petitioner, he filed a suit in O.S.No.206 of 2015 on the file of the Court of III Additional Junior Civil Judge, Vijayawada against the son of the defacto complainant, which is pending. After lapse of one year, the present complaint has been filed only with an intention to take defence in the civil suit. The trial court without recording any reasons straight away referred the complaint to the police, which is illegal and arbitrary. Therefore, the present writ petition came to be filed. 3. Heard Mr. V. Sai Sri Harsha, learned counsel, representing Mr. P.Nagendra Reddy, learned counsel for the petitioner; learned Assistant Government Pleader, Home for the respondents 1 and 2 and Mr. Sreenivasa Rao Velivela, learned counsel for the 3rd respondent. 4. Therefore, the present writ petition came to be filed. 3. Heard Mr. V. Sai Sri Harsha, learned counsel, representing Mr. P.Nagendra Reddy, learned counsel for the petitioner; learned Assistant Government Pleader, Home for the respondents 1 and 2 and Mr. Sreenivasa Rao Velivela, learned counsel for the 3rd respondent. 4. During hearing learned Assistant Government Pleader, Home for the respondents 1 and 2, on instructions, categorically submitted that the a case in Crime No. 155 of 2015 has been registered by the 1st respondent against the petitioner and others basing on private complaint filed under Section 200 of Cr.P.C alleging that the petitioner and others conspired together and hatched a plan to grab the property of the son of the complainant and in furtherance of their common intention had fabricated the election ID Card in the name of one Dantu Lakshmi Narasimha Murthy and used the same as genuine and created a sham document for their wrongful gain. The case is under investigation. Originally the said Danthu Lakshmi Narasimha Murthy is resident of Neredmet, Hyderabad and original documents along with other documents were lot and a paper publication was also punished in daily news papers and obtained certificate from the police that the documents were not traced out inspite of best efforts. The petitioner herein has filed a civil suit in O.S.No. 206 of 2015 on the file of the Court of III Additional Junior Civil Judge, Vijayawada. When the investigation was under progress, the petitioner filed the writ petition and obtained interim stay of all further proceedings. Therefore, 1st respondent is unable to file final report before the trial court. Hence, the present writ petition is not maintainable and requested to dismiss the same. 5. Perused the record. 6. The 1st respondent registered a case in Crime No. 155 of 2016 basing on a private complaint filed under Section 200 of Cr.P.C before the IV Additional Chief Metropolitan Magistrate, Vijayawada that the Accused No.1 had created sale deed in collusion with the Accused No.2 i.e petitioner herein. On 14.04.2015 when the accused highhandedly trespassed into the property belonging to the complainant/ 3rd respondent and others had beat and threatened the 3rd respondent herein with dire consequences. 7. Learned counsel for the petitioner submitted in similar circumstances of this case, this Court allowed the W.P.No.17884 of 2017 on 18.06.2024. On 14.04.2015 when the accused highhandedly trespassed into the property belonging to the complainant/ 3rd respondent and others had beat and threatened the 3rd respondent herein with dire consequences. 7. Learned counsel for the petitioner submitted in similar circumstances of this case, this Court allowed the W.P.No.17884 of 2017 on 18.06.2024. Therefore, requested this Court to pass similar order in this writ petition also. Per contra, learned counsel for the respondents vehemently opposed to allow the writ petition, but if the court feels that the writ petition is maintainable, grant liberty to the respondents to avail alternative remedies to proceed further in the matter. 8. In a case of “Yajjala Apparao & 6 others v Yajjala Jyothi Priya Darshini and another, Crl.P.No.9247 of 2013, dated 3.2.2021” wherein this Court held that: 18. In Priaynka Srivastava & another v. State of Uttar Pradesh (supra), wherein the Hon’ble Apex Court, held as under: “17. The learned Magistrate, as we find, while exercising the power under Section 156 (3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156 (3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think It apt to reproduce the said provision: 156. Police officer's power to investigate congnizable 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 over 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 in question on the ground that the case was one which such officer was no empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." Dealing with the nature of power exercised by the Magistrate Section 156 (3) of the CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v-. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." Dealing with the nature of power exercised by the Magistrate Section 156 (3) of the CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v-. V.Narayana Reddy and others [2], had to express thus: "It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156 (1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. 24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated 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. He has also to bear in mind that sending the matter would be conducive to Justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It Is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the Jurisdiction under Section 156 (3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. XXX 26. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156 (3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind.” 9. Having regard to the facts and circumstances, it is observed that, in this case, the learned Magistrate, without following endorsement referred the private complaint filed by the 3rd respondent to police for investigation. The endorsement of the learned Magistrate, is as follows; “Complainant is present. Heard. The complaint is forwarded to SHO, of Patamata PS under Section 156(3) Cr.P.C for investigation and report 17.03.2016.” 10. A reading on the above said endorsement, dated 10.02.2016 made by the learned Magistrate, in clear and vivid terms reveals that the same is not in accordance with the guidelines enunciated by the Hon’ble Apex Court in Priyanka Srivatsava’s case (supra). 11. In view of the above conclusion, in the light of provisions of Section 156(3) Cr.P.C., this Court does not propose to consider the other contentions raised by the learned counsel for the petitioner and this issue is also squarely covered by an order of this Court dated 18.06.2024 in W.P.No.17884 of 2017. 12. In view of the foregoing discussion, this Writ Petition is allowed. The impugned FIR No.155 of 2016 on the file of 1st respondent police station is hereby quashed. However, liberty is given to the respondents to avail alternative remedies in accordance with law, if they have any grievance. There shall be no order as to costs. 13. As a sequel, interlocutory applications, if any pending, shall stand closed.