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2024 DIGILAW 864 (AP)

K. Suvarna v. B Venugopal Rao

2024-07-30

V.SUJATHA

body2024
ORDER : This Criminal Petition under Section 482 of the Code of Criminal Procedure [for short Cr.P.C], seeking to quash the proceedings against the petitioners in PRC No.5 of 2019 on the file of the Judicial First Class Magistrate-cum-Special Mobile Court, Ongole, Prakasaham District, wherein the petitioners have been arrayed as accused Nos.2 to 6. 2. The brief facts of the prosecution case are as follows: [a] the deceased Bursu Sujatha was resident of Lawyerpeta, Ongole and she is the wife of the defacto complainant i.e., Burse Venugopala Rao. Accused No.1/A1 i.e., Kunchala Hari is the adopted son and he is the youngest to all. In the year 2008, the father of the deceased one Kunchala Venkata Subbaiah died due to old age and during his life, father of the deceased had shared the properties to his sons and daughters except three houses located in Srinivasa Nagar, Tangutur. The said three houses were in possession of the mother of the deceased Kunchala Ramulamma. The accused No.1 along with his family members including the mother of the deceased are residing in one house and the remaining two houses were given on rent. After the death of their mother in the year 2015, the accused Kunchala Hari is taking rents. The deceased Sujatha and her family members took objection in occupying one house and taking rents for the remaining two houses by claiming right on the property. In this connection, ill feelings arose between the family of the accused and the deceased and they had frequent quarrels with each other. While so, on 03.07.2017 the deceased Bursu Sujatha went to Srinvasa Nagar, Tangutur and questioned the accused No.1 to give rents to her, forthwith a quarrel took place between the family of the accused and the deceased. In this connection, basing on the complaint of Bursu Sujatha/the deceased, on 03.07.2017 a case in Crime No.133 of 2017 dated 03.07.2017 was registered for the offences punishable under Sections 354, 324 r/w 34 of IPC of Tangutur Police Station against the accused No.1 and three others. [b] On 04.07.2017 the deceased submitted a representation to the Assistant Engineer (A.E.) Electricity Department, Tangutur requesting to remove electricity connection to above three houses on the pretext of getting repairs. As such, on 04.07.2017, the A.E. gave instructions to one Chatragadda Sundara Rao, the Assistant Lineman to remove the electricity connection. [b] On 04.07.2017 the deceased submitted a representation to the Assistant Engineer (A.E.) Electricity Department, Tangutur requesting to remove electricity connection to above three houses on the pretext of getting repairs. As such, on 04.07.2017, the A.E. gave instructions to one Chatragadda Sundara Rao, the Assistant Lineman to remove the electricity connection. At about 11.00 hours the Electricity Lineman visited the house of the accused to remove the electric service wire. As the accused and other inmates were presence, the Assistant Lineman returned without disconnecting the power supply. The accused/A1 came to know about the arrival of the Assistant line man for disconnecting the power supply, accused has decided to eliminate the deceased for causing troubles to him. [c] While so, at about 17.00hrs, while the accused was at his house, the deceased along with Assistant Lineman and other electricians came there to get remove the power supply, the accused Kunchala Hari had a quarrel with the deceased and threatened her that he would kill her if she removes the electricity connection to his house. In the meantime, the wife of the accused by name Kunchala Suvarna came there and requested the deceased not to disconnect the power supply. But the deceased did not care the warnings of the accused and got removed the electricity connection with the help of the Assistant line man and private electricians. Following the above incident, the wife of the accused Kunchala Suvarna and her children went into house, bolted the doors and tried to commit suicide by pouring kerosene and they were rescued by one Busu Ramanaiah, who is the father of Bursu Suvarna. Fed up with the behavior of the deceased, the accused took an axe which was already kept by him in the Varanadah of his house, went to the deceased, who stood on the road, hacked her on the right side of the neck, chin and on head with intent to kill her and fled away from there as a result of which, the deceased sustained severe bleeding injuries and collapsed on the ground in pool of blood. The defacto complainant/Bursu Venu Gopal, who is husband of deceased rushed to the scene of offence and shifted the deceased to R.I.M.S. Hospital, Ongole for treatment, where doctors examined the deceased and declared as brought dead. The defacto complainant/Bursu Venu Gopal, who is husband of deceased rushed to the scene of offence and shifted the deceased to R.I.M.S. Hospital, Ongole for treatment, where doctors examined the deceased and declared as brought dead. [d] Basing on the statement of the Lw.1/ Bursu Venu Gopal, the Police Tangutur registered a case in Crime No.135/2017 under Sections 302, 509 r/w 34 IPC under Section 109 IPC of Tangutur Police Station on 04.07.2017 against 06 accused. After examining all the witnesses and after completing of investigation, the Investigating Officer added section 506 IPC to the existing Sections 302, 509 r/w 34, 109 IPC. After completion of investigation, the investigating officer, concluded that on noticing the suicide attempt by alleged A2 due to the acts of the deceased, A1 took an axe and hacked the deceased with an intention to kill her. Though the alleged accused No.2 and 3 were present at the scene, they have not participated in the occurrence and they have not expected murder of the deceased by the A1. The alleged accused A4 to A6 were not present at the scene and they did not participated in the offence. The alleged accused No.6 was also not at the scene and he has been residing in Hyderabad for the past one year. As the A1 is relative to A2 to A6, the defacto complainant falsely implicated their names with an intent to cause troubles to them. After completion of the investigation, the investigating officer filed charge sheet against the accused A1 under Section 302, 509, 506 IPC deleting the names of the petitioners as accused. After receiving the charge sheet, on 19.01.2019 learned IV Additional Judicial Magistrate of First Class, Ongole ordered service of summons on the 1st respondent/defacto complainant. The same was served on him on 05.02.2019. On 06.02.2019 the 1st respondent appeared and stated that A2 to A6 are not accused as per the charge sheet, on that the learned magistrate took the case on file under Sections 302, 509, 506 of IPC against A2 to A6 and Accused No.1. Challenging the same, present criminal petition is filed to quash the said proceedings against the petitioners herein. 2. Heard leaned counsel for the petitioners and learned counsel for the respondent No.1 as well as the learned Public Prosecutor appearing for the respondent No.2. 3. Challenging the same, present criminal petition is filed to quash the said proceedings against the petitioners herein. 2. Heard leaned counsel for the petitioners and learned counsel for the respondent No.1 as well as the learned Public Prosecutor appearing for the respondent No.2. 3. At the time of admission, on 08.03.2019, this Court granted stay of all further proceeding in PRC No.05 of 2019 on the file of the Judicial First Class Magistrate, Special Mobile Court, Ongole, Prakasam District and the same is extended from time to time. 4. Learned counsel for the petitioner would submit that the investigating officer, after due investigation, filed charge sheet on 11.07.2018 by deleting the names of the petitioners herein, but the Court below took cognizance of the case vide docket order dated 13.02.2019 implicating the petitioners herein also, basing on the statement of defacto complainant only, without assigning any reasons and without there being any evidence on record. Therefore, prayed to quash the proceedings against the petitioners. 5. Refuting the arguments referred to above, learned Assistant Public Prosecutor would submit that there are no grounds to quash the case against petitioners and basing on the allegations made against the petitioners, the court below took cognizance against the petitioners herein also and therefore, the criminal proceedings should not be quashed against Petitioners. Hence, prayed to dismiss the petition. 6. 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 2 to 6 in PRC No.5 of 2019 on the file of the Judicial First Class Magistrate-Special Mobile Court, Ongole, Prakasaham District under Sections 302, 509, 506 of IPC? 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. A three-Judge Bench of the Hon’ble Apex Court in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988)1 SCC 692 . held as follows; “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. held as follows; “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 10. Section 482 is designed so as to ensure that criminal proceedings are not used as weapons of harassment by complainants. In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 , the Hon’ble Apex Court observed as follows; “46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases” 11. A three- Judge Bench of the Hon’ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, summarized the law for invocation on inherent powers in the following terms; “57. A three- Judge Bench of the Hon’ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, summarized the law for invocation on inherent powers in the following terms; “57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences; ii) Courts would not thwart any investigation into the cognizable offences; iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, in the “rarest of rare cases”. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court); v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr. P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.” 12. On a perusal of the record, while taking cognizance of the offences, learned Magistrate of the Court below passed the docket order dated 06.02.2019, which reads as under: “Notice served to the defacto complainant. Defacto complainant present and stated that A2 to A6 are not accused from the charge sheet. Hence, the case taken on file under Section 302, 509, 506 IPC against A1 to A6. Hence, serve summons to A2 to A6 call on 13.02.2019.” 13. A plain reading of the above docket order, it clearly discloses that without there being any supporting evidence on record, basing on the statement made by the defacto complainant, the Court below taken cognizance of the offences against the petitioners herein mechanically. Hence, serve summons to A2 to A6 call on 13.02.2019.” 13. A plain reading of the above docket order, it clearly discloses that without there being any supporting evidence on record, basing on the statement made by the defacto complainant, the Court below taken cognizance of the offences against the petitioners herein mechanically. The order did not contain any reasons for attributing the offences against the petitioners. Moreover, when the investigation officer filed charge sheet deleting the names of the petitioners as accused, the learned Magistrate ought to have record the reasons for taking the offences against the accused. 14. Time and again, the Apex Court and this Court issued certain guidelines to be followed for drafting judgments/orders and highlighted the requirements of an order or judgment. The need for recording of reasons is greater in a case where the order is passed at the original stage, a decision without reasons is like grass without root, the requirement to record reasons is one of the principles of natural justice as well and where a statute required recording of reasons in support of the order, it must be done by the authorities concerned as held by the Apex Court in “S.M. Mukerji v. Union of India, 1990 Crl.L.J.2148”. 15. In view of the principle laid down in the above judgment, this Court finds it is a fit case to quash the proceedings under Section 482 Cr.P.C for the offences alleged against petitioners. 14. Accordingly, the Criminal Petition is allowed by quashing the proceedings against the petitioners/A2 to A6 in PRC No.5 of 2019 on the file of the Judicial First Class Magistrate-cum-Special Mobile Court, Ongole, Prakasaham District. As a sequel thereto, miscellaneous petitions, if any pending, shall stand closed.