THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.680 of 2015
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/A.3, challenging the judgment, dated 02.02.2015, passed in Criminal Appeal No.105 of 2013 by the III Additional Sessions Judge, Ranga Reddy District, whereby, the judgment, dated 29.01.2013, passed in C.C.No.17 of 2012 by the Special Magistrate-I, Cyberabad at Malkajgiri, convicting the petitioner/A.3 of the offence under Section 28 of A.P. Apartments (Promotion of Construction and Ownership) Act, 1987 (for short "A.P. Apartment Act") and sentencing her to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for a period of three months, was confirmed.
2. I have heard the submissions of Sri K.Venu Madhav, learned counsel for the petitioner/A.3, leaned Assistant Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
A.1 and A.2 in this case are the Promoters and Builders of Annapurna Apartments, Premises bearing No.14-2 and 14-1/1 in Sy.No.16, situated at Meerpet, Uppal Mandal, Ranga Reddy District. PWs.1 to 6 are the owners of different flats in the said apartments, 2 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 having purchased the same by way of registered sale deeds from the year 1998. The petitioner/A.3 is one of the purchasers of the flat in the said apartment. A.1 and A.2 after raising construction, left an area of about 1100 square feet towards common parking area in the entire building, wherein 13 residential flats and seven mulgies are existing. The flats have been sold 10 years back and from then onwards, PWs.1 to 6 and other flat owners have been enjoying the parking area as common area, without causing disturbance to one another. The parking area was not totally sufficient, but all the inmates of the building used to adjust the same. While the things stood thus, A.1 and A.2, with a mala fide intention and to have unlawful gain, sold a major portion of common parking area i.e. 420.75 feet to the petitioner/A.3, who is a close relative to them, without knowledge and consent of other flat owners. A.4 in this case is the husband of the petitioner/A.3, who is very arrogant. On 08.11.2008, he raised a strong objection for PWs.1 to 6 and others for parking their vehicles in the area illegally purchased by them by virtue of registered sale deed executed by A.1 and A.2 in favour of the petitioner/A.3. When the flat owners questioned the petitioner/A.3 and A.4 about the same, all of a sudden, they got wild and abused them in filthy language and also threatened them that in case they park their vehicles in the area purchased by them, they will see their end and damaged the vehicles. With the above allegations, 3 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 PWs.1 to 6 jointly filed a private complaint on 20.11.2008 before the trial Court, which was forwarded by the Magistrate concerned to the Station House Officer, Kushaiguda Police Station under Section 156(3) of Cr.P.C. for investigation and report.
4. The Station House Officer, Kushaiguda Police Station, on receipt of the Court referred complaint, registered a case in Crime No.802 of 2008 under Sections 37 and 506 of IPC and also under Section 28 of the A.P. Apartment Act. The Sub Inspector of Police, took up the investigation, examined and recorded the statements of PWs.1 to 6, visited the place of offence and caused enquiry in the locality regarding the incident. While so, on 30.12.2008, A.1 and A.2 surrendered before the Court and obtained bail. Petitioner/A.3 and A.4 also surrendered before the Court on 31.12.2008 and obtained the bail. After completion of investigation, the Sub Inspector of Police laid the charge sheet against A.1 to A.4 for the offences as stated supra.
5. On appearance of the accused before the Court, copies of documents, as required under Section 207 of Cr.P.C., were furnished to them and were examined under Section 251 of Cr.P.C. by reading over the accusations levelled against them. The accused pleaded not guilty and claimed to be tried.
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Crl.R.C.No.680 of 2015
6. During the trial, the prosecution examined PWs.1 to 7 and got marked Exs.P1 to P10. PWs.1 to 6 are the owners of the flats in Annapurna Apartments. PW.7-B.Prabhakar is the Investigation Officer. Ex.P1 is the complaint given by PWs.1 to 6. Exs.P2 to P7 are the copies of registered sale deeds executed by A.1 and A.2 in favour of PWs.1 to 6. Ex.P8 is the FIR. Ex.P9 is the copy of registered sale deed executed by A.1 and A.2 in favour of petitioner/A.3. Ex.P10 is the copy of registered sale deed executed by A.1 and A.2 in favour of petitioner/A.3 in respect of common parking area.
7. After closure of the prosecution evidence, A.1 to A.4 were examined under Section 313 of Cr.P.C. with reference to the incriminating material appearing against them. A.1 to A.4 denied the evidence of prosecution witnesses. On behalf of the accused, no oral evidence has been adduced, but Ex.D1-copy of certificate of registration along with bye-laws and Ex.D2-copy of the plan in respect of the Annapurna Apartment were marked.
8. The trial Court after adverting to the submissions made and material available on record, while acquitting A.4 of the offence under Section 506 of IPC and 28 of the A.P. Apartment Act, found A.1 to A.3 guilty of the offence punishable under Section 27 of A.P. Apartment Act and, accordingly, convicted them and sentenced to 5 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 pay a fine of Rs.2,000/- each, in default, to undergo simple imprisonment for three months. However, A.1 to A.3 were found not guilty of the offence under Section 506 of IPC. Aggrieved by the same, the petitioner/A.3 filed the subject Criminal Appeal No.105 of 2013 before the Court below and the Court below, after re-analyzing the evidence on record, confirmed the conviction and sentence recorded against the petitioner/A.3 by the trial Court. Aggrieved by the same, the A.3 filed the instant Criminal Revision Case.
9. Learned counsel for the petitioner/A.3 would submit that the impugned judgment of the Court below is erroneous and is against the material available on record. The sum and substance of the accusations levelled against the petitioner/A.3 that the petitioner/A.3 alleged to have been committed the offence under Section 28 of the A.P. Apartments Act. As per the said provision, any "promoter" or "owner" of the apartment, without reasonable excuse, fails to comply with or contravenes any provision of Section 24 of the A.P. Apartments Act is liable to be punished imprisonment for a term which may extent to one year or with fine which may extend to Rs.50,000/- or with both. In the present case, the petitioner is neither a promoter nor owner of the apartment but she is only a purchaser on par with the complainants i.e. other flat owners and as such, the said provision does not attract against the petitioner/A.3.
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Crl.R.C.No.680 of 2015
Further, the Court below failed to consider that under Ex.D2-sanction plan, there is no common parking area as claimed by the complainants. Further, the offence under Section 28 of the A.P. Apartment Act as well as Section 506 of IPC are non-cognizable offences and as such the learned Magistrate, on a complaint filed by the complainants, should have taken cognizance of the offences and should have tried the same, instead the learned Magistrate referred the complaint to the police concerned under Section 156(3) of Cr.P.C. and the police, after investigated the case, filed charge sheet. Thus, the entire process of investigation and trial is illegal. Further no orders under Section 155(2) of Cr.P.C. were obtained from the Magistrate concerned by the police before commencing of the investigation and as such, initiation of criminal proceedings itself is illegal. Further, without there being any evidence, muchless cogent and convincing evidence, conviction was recorded by the trial Court against the petitioner/A.3 of the offence under Section 28 of the A.P. Apartment Act, which was confirmed by the Court below, which is erroneous. The petitioner/A.3 is entitled for clean acquittal at the hands of this Court by exercising Revisional Jurisdiction under Section 397 and 401 of Cr.P.C. and ultimately prayed to allow the Criminal Revision Case as prayed for.
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Crl.R.C.No.680 of 2015
10. On the other hand, the learned Assistant Public Prosecutor supported the impugned judgment and contend that there is nothing to interfere with the impugned judgment passed by the Court below which is based on sound reasoning. The petitioner/A.3 had illegally purchased the common area which is meant for parking of the vehicles of the flat owners and as such, she is guilty of Section 28 of the A.P. Apartment Act. There are no circumstances to interfere with the impugned judgment passed by the Court below by exercising power under Sections 397 and 401 of Cr.P.C. The contentions raised on behalf of the petitioner/A.3 are untenable and ultimately prayed to dismiss the Criminal Revision Case.
11. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows:
"Whether the impugned judgment, dated 02.02.2015, passed in Criminal Appeal No.105 of 2013 by the III Additional Sessions Judge, Ranga Reddy District, is legally sustainable?"
POINT:-
12. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 and 401 of 8 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., is not to be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court to exercise all powers of appellate Court, if necessary, in aid of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
13. In the instant case, it is an admitted fact that Annapurna Apartment was constructed by A.1 and A.2 and they have sold some flats to different persons, including PWs.1 to 6. It is also an admitted 9 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 fact that there are mulgies attached to the apartment and that an extent of about 1100 square feet was left over towards parking, which is a common area. Section 28 of the A.P. Apartment Act reads as follows:
"Any promoter or owner of the apartment without reasonable excuse fails to comply with or contravenes any provision of Section 4, Section 5, Section 6, Section 7, Section 24, Section 25, Section 27, shall be punishable with imprisonment for a term which may be extended to one year or with fine which may be extended to fifty thousand rupees or with both."
A plain reading of the above extracted of Section 28 of the A.P. Apartment Act makes it clear that any promoter or owner of the apartment, without reasonable excuse, fails to comply with or contravenes any provision of Sections 4, 5, 6, 7, 24, 25 and 27 of the Act shall be punishable with imprisonment for a term which may be extended to one year or with fine which may be extended to Rs.50,000/- or with both. As rightly contended by the learned counsel for the petitioner/A.3, the petitioner/A.3 is neither a "promoter" nor an "owner" of the Annapurna Apartment. She is a purchaser of a flat in the said apartments along with PWs.1 to 6. Further, in the year 2008, Annapurna Apartments Flat Owners Association was formed and registered as per Ex.D1-certificate. PW.1 was elected as Secretary, PW.3 as the President and PW.4 was elected as General Secretary to the said association. It is also evident from the material placed on record that PWs.1 to 6 have filed 10 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 O.S.No.2326 of 2008 on the file of the Additional District Judge, Ranga Reddy District to declare the sale deed executed by A.1 and A.2 in favour of the petitioner/A.3 in respect of the common parking area as null and void, in their individual capacity and not on behalf of the flat owners association. The subject criminal case is also filed by PWs.1 to 6 against the accused in their individual capacity. It is also an admitted fact that PWs.1 to 6 and other flat owners did not file any declaration before the competent authority as required under law. It is also an admitted fact that after the purchase of their respective flats, PW.1 erected separate gate to his flat, similarly PW.4 constructed a separate staircase to his flat and also a grill and PW.3 also erected a grill window in her flat. For the above violations, A.4 filed a complaint with the authorities concerned against PWs.1, 3 and 4. It is also an admitted fact that the above constructions made by PWs.1, 3 and 4 were not regularized by the association through the competent authority. Thus, it is culled out from the record that there are several deviations as per the sanctioned plan. Further, in Ex.P1 complaint, the date of offence was mentioned as 08.11.2008 and Ex.P1 complaint was filed before the Court on 26.11.2008. Thus, there was a delay of 18 days in lodging Ex.P1 complaint. There is no explanation from the side of prosecution with regard to the said delay. Further, there are latches on the part of the PW.7- Inveistigation Officer in conducting proper investigation in this case.
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PW.7, in his cross-examination admitted that he did not verify the bye-laws of the apartment and the provisions of Section 28 of A.P. Apartment Act would not come under the purview of the police; that the date of examination and recording of statements of PWs.1 to 6 under Section 161 of Cr.P.C. is not mentioned by him; that he did not take the measurements of the common parking area to find out the truth.
14. Learned counsel for the petitioner/A.3 would contend that the offences under Section 28 of the A.P. Apartment Act and Section 506 of IPC are non-cognizable offences and the police investigated the offences without obtaining prior permission of the Magistrate concerned and hence, investigation conducted by the police is violative of the provisions Sub Section 2 of Section 155 of Cr.P.C. In my opinion, this contention of the learned counsel is correct. It is worth mentioning that the private complaint lodged by PWs.1 to 6 does not disclose the commission of any cognizable offences. On the contrary, it discloses the commission of non-cognizable offences, i.e. offences punishable under Sections 28 of the A.P. Apartment Act and 506 of IPC. As per Sub Section 2 of Section 155 of Cr.P.C. debars a Police Officer from investigating the non-cognizable offences, without the order of a Magistrate having power to try such cases. Where a complaint discloses a cognizable as well as non-cognizable offences, 12 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 the police is not debarred from investigating any non-cognizable offences which may arise on the same facts and he can include that non-cognizable offence in the charge sheet, which he presents for a cognizable offences. However, if the information discloses only a non-cognizable offence, the police officer cannot investigate the said offence, without the requisite sanction under Sub Section 2 of Section 155 of Cr.P.C. In the instant case, admittedly, no permission had been obtained by the police to investigate into the offences punishable under Sections 28 of the A.P. Apartment Act and Section 506 of IPC. Under these circumstances, the police cannot be allowed to flout the mandatory provision of Sub Section 2 of Section 155 of Cr.P.C. That being so, the investigation conducted in the instant case is in violation of mandatory provision of Sub Section 2 of Section 155 of Cr.P.C. bears a stamp of illegality.
15. Viewed from any angle, it is clear that the prosecution could not establish the guilt of the petitioner/A.3 of the offence under Section 28 of the A.P. Apartment Act. The trial Court, while rightly acquitting the petitioner/A.3 of the offence under Section 506 of IPC, erroneously convicted her of the offence under Section 28 of the A.P. Apartment Act. None of the ingredients of Section 28 of the A.P. Apartment Act are made out against the petitioner/A.3. Viewed thus, the impugned judgment is improper and irregular, which resulted in 13 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015 miscarriage of justice and hence, brooks interference by this Court in exercise of Revisional jurisdiction under Sections 397 and 401 of Cr.P.C.
16. In the result, the Criminal Revision Case is allowed by setting aside the judgment, dated 02.02.2015 passed in Criminal Appeal No.105 of 2013 by the III Additional Sessions Judge, Ranga Reddy District. Consequently, the petitioner/A.3 is acquitted of the offence under Section 28 of the A.P. Apartment Act. Fine amount, if any, paid by her, shall be refunded to her.
Miscellaneous applications, if any, pending in this Criminal Revision Case, shall stand closed.
_______________ JUVVADI SRIDEVI, J 28th March, 2023 Ksk