THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NOS.4929 & 6308 OF 2019
COMMON ORDER:
1. The petitioners in Criminal Petition No.4929 of 2019 are A1,
A2, A4 to A11 and petitioner in Criminal Petition No.6308 of 2019
is A3, aggrieved by the orders passed in Crl.M.P.No.822 of 2019 in
Crime No.182 of 2018 on the file of II Additional Junior Civil Judge-
cum-XIX Additional Metropolitan Magistrate, Cyberabad, filed the
petitions.
2. The police on the basis of the complaint filed by the 2nd
respondent filed final report referring the case as false. Aggrieved
by the same, the 2nd respondent filed protest petition before the trial Court. By impugned order vide in Crl.M.P.No.822 of 2019 in Crime No.182 of 2018, dated 01.06.2019, the learned Magistrate had taken cognizance against these petitioners for the offences under Sections 448, 323, 504 r/w 149 IPC.
3. In the impugned order the learned Magistrate has taken cognizance giving reasons at para 5, as follows:
"As seen from the protest petition, the complainant has made out and established clear incidents of criminal intimidation, damage of property so also criminal intimidation. Police have closed the case as false without submitting statements that were recorded by them before the Court. Their statements were also video recorded but 2 were not produced before the Court, which clearly establishes that S.I. of Police/D.Srinivas Rao is under the influence of the accused as one of the accused is son of an IAS officer. This Court is convinced with the pleadings and statements of LW1 to LW3 and this is fit case to proceed against accused. As such, final report is rejected and cognizance is taken against A1 to A11 for the offence U/s.448.323, 504 r/w 149 IPC."
4. When the case is closed, though there is no provision for protest petition to be filed before the Court, in the event of such protest petition or complaint being filed, the Court has to follow the prescribed procedure under Section 200 of Cr.P.C. For the sake of convenience, the same is extracted hereunder:
"200.Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them."
5. The provision contemplates examination of complainant upon oath and any other witnesses present. After such examination, cognizance can be taken. Exemptions are under clauses (a) and (b), which are not applicable in the present case. 3
6. From the order, it is evident that none of the witnesses were examined, which is violation of the procedure.
7. Further, the learned Magistrate had stated that from the protest petition, incidents of criminal intimidation, damage of property were made out. However, Magistrate did not mention about the facts briefly to infer that the offence was made out.
8. This Court in the Common Order dated 28.02.2023 in Criminal Petition Nos.439 and 545 of 2023, quashed the proceedings on 28.02.2023 finding that taking cognizance against the accused was not in accordance with the law laid down by the Hon'ble Supreme Court in the cases of; i) Sunil Bharti Mittal v. Central Bureau of Investigation 1; ii) Fakhruddin Ahmad v. State of Uttaranchal and another 2; iii) Deepak Gaba and others v. State of Uttar Pradesh 3.
9. This Court in Criminal Petition Nos.439 and 545 of 2023, held as follows:
"16. The Hon'ble Supreme Court further held that mere assertion "that having perused the record and statements of witnesses prima facie accusation is well founded" as recorded 1 (2015) 4 Supreme Court Cases 609) 2 (2008) 17 Supreme Court Cases 157 3 (2023 LiveLaw(SC) 3 4 by the learned Magistrate will not meet the requirements of summoning the accused by application of judicious mind. Time and again, this Court and the Hon'ble Supreme Court has found that summoning a person as accused to face criminal trial is a serious step taken by the criminal Court and such summoning can only be done when the Magistrate finds on the basis of facts that the ingredients of the offence alleged are prima facie made out. For the said reason, cognizance order bereft of proper reasoning is liable to be set aside and accordingly set aside."
10. Both for the reasons of not following the procedure under Section 200 Cr.P.C and also the order taking cognizance being bereft of the reasons, the impugned order taking cognizance against the petitioners by II Additional Junior Civil Judge-cum-XIX Additional Metropolitan Magistrate, Cyberabad, is hereby set aside. However, this order will not preclude the trial Court from taking cognizance in accordance with the observations of the Hon'ble Supreme Court in the above judgments.
11. Accordingly, both the Criminal Petitions are allowed. Consequently, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date: 10.11.2023 kvs 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NOS.4929 & 6308 OF 2019 Dt.10.11.2023 kvs