THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CRIMINAL PETITION No.3653 OF 2015
ORDER:
This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), is filed by the petitioner-accused seeking to quash the proceedings in C.C.No.81 of 2015 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad City.
2. Heard learned counsel for the petitioner-accused, learned Public Prosecutor representing the respondent-State and perused the record.
3. The case of the prosecution, in brief, is that the petitioner- accused, M.L.A. of Kondagal Constituency, made a paper statement and press conference on 28.08.2014 at NTR Trust Bhavan, Road No.2, Banjara Hills, Hyderabad, that to win the General Election, 2014, the Honourable Chief Minister of Telangana Sri KCR has promised to inflate the cement prices and that he has also taken Rupees 100 Crores as bribe from private medical college managements to inflate the fee structure. It is also the case of the prosecution that the petitioner-accused made a snatching allegation that an MLA told him that if anyone intends to give Rupees 100 Crores as bribe, he has to meet Sri KCR and whoever intends to give Rupees one Crore as bribe, he has to meet Sri KTR. The petitioner-accused made several more allegations on Sri KCR accusing him of amassing Crores of Rupees as bribe and ultimately, the petitioner-accused has Dr.SA,J 2 Crl.P.No.3653 of 2015 committed the offences punishable under Sections 504 and 505 I.P.C. One K.Goverdhan Reddy (LW.1) lodged a complaint under Section 200 Cr.P.C. before the Magistrate concerned against the petitioner-accused. The same was referred to the police under Section 156 (3) Cr.P.C. for investigation. Basing on the same, Crime No.1005 of 2014 of Banjara Hills Police Station, Hyderabad, was registered against the petitioner-accused for the offences punishable under Sections 504 and 505 I.P.C. After completion of investigation, final report was filed against the petitioner-accused for the aforementioned offences before the III Additional Chief Metropolitan Magistrate, Hyderabad City. The learned Magistrate has taken cognizance of the said offences and numbered the criminal case as C.C.No.81 of 2015.
4. Learned counsel for the petitioner-accused, firstly, would submit that the de facto complainant-K. Goverdhan Reddy has no locus standi to file a complaint against the petitioner-accused. Secondly, there are no ingredients of Section 505 (2) I.P.C., as alleged. The requisite permission as required under Section 155 (2) Cr.P.C. has not been obtained by the Investigating Officer to investigate into the subject crime. Without obtaining such permission, final report is filed in the subject crime. As such, it is bad in law for non-compliance of obtaining requisite permission under Section 155 (2) Cr.P.C. As there is no commission of cognizable offence, the petitioner-accused cannot be proceeded against. Further, there is no mens rea and ultimately, prayed to quash the proceedings in the subject C.C.
Dr.SA,J 3 Crl.P.No.3653 of 2015 Learned counsel, in support of his submissions, placed reliance on Bilal Ahmed Kaloo v. State of A.P.1, K. Nagendra Babu @ Nagendra Rao v. Yathipathi Arun Kumar2 and Guguloth Jagan v. The State of Telangana3.
5. On the other hand, the learned Public Prosecutor representing the respondent-State would submit that the allegations made in the F.I.R. constitute the offence punishable under Section 505 (2) I.P.C., which is a cognizable offence. Therefore, no permission under Section 155 (2) Cr.P.C. is required. The allegations of bribe made by the petitioner- accused against the Honourable Chief Minister of Telangana Sri KCR constitute enmity, hatred and ill-will between different classes of people. In view of the nature of the allegations made against the petitioner-accused, LW.1 is justified in lodging a report with the police. No ground is available to the petitioner- accused to quash the subject proceedings. The allegations made against the Honourable Chief Minister of Telangana Sri KCR reflect mens rea on the part of the petitioner-accused. Further, charges are not yet framed by the trial Court. The trial Court has to examine the case, frame appropriate charges and then proceed against the petitioner-accused. In order to prove the innocence or otherwise of the petitioner-accused, the petitioner- accused is required to undergo trial in the subject Calendar Case. Therefore, it is not a fit case to quash the proceedings in 1 (1997) 7 SCC 431 2 2017 Law Suit (Hyd) 55 3 Crl.P.No.2894 of 2015 Dr.SA,J 4 Crl.P.No.3653 of 2015 the subject Calendar Case as prayed for. Learned Public Prosecutor, in support of his submissions, relied on Kedar Nath Singh v. State of Bihar4, Pravasi Bhalai Sangathan v. Union of India5, Vinod Dua v. Union of India6 and Ghanshyam Sharma v. Surendar Kumar Sharma7.
6. In view of the above submissions of both the sides, the point that arises for determination in this Criminal Petition is as follows:-
"Whether the proceedings against the petitioner-accused in C.C.No.81 of 2015 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad City, are liable to be quashed?"
POINT:-
7. The first contention of the learned counsel for the petitioner-accused is that the respondent No.2 has no locus standi to file the subject complaint and in support of the said submission, he placed relied on a decision of this Court in K. Nagendra Babu's case (2 supra), wherein, a practicing advocate filed a private complaint against 22 accused for the offences punishable under Section 500 IPC and under Section 5B (1) an (2) of Cinematorgraph Act, 1952, against the actors who acted and performed programme in a T.V. channel insulting and defaming the legal profession and decorum of the Court proceedings and this Court, held that the petitioners therein 4 1962 AIR 955 5 AIR 2014 SC 1591 6 W.P. (Criminal) No.154 of 2020 Dr.SA,J 5 Crl.P.No.3653 of 2015 being members of unidentifiable group of advocates, who did not suffer any injury on account of such slanderous statement, are incompetent to institute criminal proceedings against the respondents. In the instant case also, the de facto complainant is an advocate and he did not suffer any injury on account of the statements alleged to have been made by the petitioner-accused through electronic and print media.
8. The second contention of the petitioner-accused is that the investigation is hit by Section 155 (2) Cr.P.C.
9. Section 155 (2) Cr.P.C. reads as under:
"155. Information as to non-cognizable cases and investigation of such cases (1) xxxx (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) xxxx (4) xxxx"
10. In the instant case, the petitioner-accused is being proceeded with for the offences under Sections 504 and 505 I.P.C. The sum and substance of the allegations made against the petitioner-accused is that petitioner-accused is an M.L.A. of Kondagal Constituency. On 28.08.2014, he addressed the electronic and print media in NTR Trust Bhavan, Banjara Hills, Hyderabad, and stated that the Honourable Chief Minister of Telangana Sri KCR has taken bribe from the private medical college managements to inflate the fee structure and that 7 (Crl.A.No.1838 of 2014) Dr.SA,J 6 Crl.P.No.3653 of 2015 whoever intends to give Rupees 100 Crores as bribe, they have to meet Sri KCR and that whoever intends to give Rupees one Crore as bribe, they have to meet Sri KTR and that Sri KCR was amassing Crores of rupees by way of bribe through medical colleges. The said allegations made against the sitting Chief Minister of Telangana State hurt the sentiments of Telangana State people and the statement is aimed for provoking the Telangana State people, knowing that it would likely break the public peace.
11. In Bilal Ahmed Kaloo's case (1 supra), the Honourable Apex Court at paragraph Nos.12 and 24, held as under:
"12. ... The words "whoever makes, publishes or circulates" used in the setting of Section 505 (2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, anyone who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction...."
"24. Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Sections 153-A, 124-A and 505 (2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences. A mechanical order convicting a citizen for offences of such serious nature like sedition and promoting enmity and hatred etc. does harm to the cause. It is expected that the graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with."
In the aforesaid decision, the Honourable Apex Court, while dealing with similar circumstances, held that the main Dr.SA,J 7 Crl.P.No.3653 of 2015 ingredients of Section 505 (2) I.P.C. are provoking enmity, hatred or ill-will between different classes of people. It was also held that mens rea is also equally necessary to postulate the offence under Section 505 (2) I.P.C. In the instant case, the petitioner-accused made allegations against two individuals. Though one of them was/is Honourable Chief Minister of the State of Telangana, there is no mention of above referred ingredients anywhere in the material collected by the Investigating Officer. Further, from a plain reading of the alleged statements made by the petitioner-accused, it cannot be held that those statements, in any case, would create rumors, promote enmity, hatred or ill-will between two classes of persons or between different religions, race, language or regional groups or castes or communities. Viewed from any angle, the alleged statements made by the petitioner-accused would not fulfill the requirements under Section 505 (2) I.P.C. Furthermore, there is no mens rea creating or promoting enmity, hatred or ill-will between different classes of people. The petitioner-accused is facing prosecution for the offences punishable under Sections 504 and 505 I.P.C. The Investigating Officer did not classify whether the offence alleged against the petitioner-accused falls under Section 505 (2) I.P.C. or not. Even the investigating officer, in the charge-sheet filed in the subject case, did not reach to a conclusion that the alleged statements in question provoked enmity, hatred or ill-will between different class of people etc. Further, it is not the case of the public prosecutor Dr.SA,J 8 Crl.P.No.3653 of 2015 that the allegations constitute offence under Section 505 (3) I.P.C. Admittedly, the offence under Section 504 I.P.C. is a non- cognizable offence and the offence under Section 505 (1) I.P.C. is also a non-cognizable offence. The offences under Sections 505 (2) and 505 (3) I.P.C. are cognizable offences. The offences alleged in the instant case are under Sections 504 & 505(1) of IPC and non-cognizable, permission from the Magistrate under Section 155 (2) Cr.P.C. is required to investigate into such alleged offences. In the instant case, admittedly, there is no compliance of Section 155 (2) Cr.P.C. Though the private complaint filed by L.W.1 was referred to the Station House Officer concerned under Section 156 (3) Cr.P.C. by the Magistrate concerned to investigate into the subject crime, no permission as required under Section 155 (2) Cr.P.C. was obtained by the Investigating Officer before investigating into the subject crime. In Guguloth Jagan's case (3 supra), this Court held that the report of the de facto complainant therein clearly shows the commission of a non-cognizable offence and hence, the investigation was hit by Section 155 (2) Cr.P.C.
12. With regard to the decisions relied upon by the learned Public Prosecutor are concerned, the facts and circumstances in the said cases are different from the facts and circumstances of the case on hand.
13. Requisite procedure shall be followed to prosecute any person, and justice shall always be in accordance with law. In Dr.SA,J 9 Crl.P.No.3653 of 2015 view of the observations and findings recorded above, the proceedings in C.C.No.81 of 2015 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad City, pending against the petitioner-accused are liable to be quashed.
14. Accordingly, the Criminal Petition is allowed and the proceedings in C.C.No.81 of 2015 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad City, pending against the petitioner-accused are hereby quashed.
Miscellaneous Petitions, if any, pending in this Criminal Petition shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J February 26, 2021.
MD/Bvv