Telangana High Court
Gollegudem Narsimulu vs The State Of Telangana on 1 March, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.8263 OF 2022
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners/accused Nos.1 to 3, in C.C.No.365 of 2019, on the file of the learned Judicial Magistrate of First Class, Chevella, Ranga Reddy District, registered for the offences punishable under Sections 188 and 427 of the Indian Penal Code, 1860 (for short 'the IPC').
2. Brief facts of the case are that respondent No.2/de facto complainant lodged a complaint before the Shankarpally Police Station, Cyberabad against the petitioners/accused Nos.1 to 3 stating that though the ex parte ad-interim injunction order in I.A.No.462 of 2019 in O.S.No.105 of 2019 was passed by the learned Junior Judge-cum-Judicial Magistrate of First Class, Chevella, Ranga Reddy District restraining the petitioners from making illegal constructions and interfering with the peaceful possession and enjoyment of the petition property, the petitioners started illegal construction, on which the elders of the village came there and informed them not to construct the house, as the matter is pending in the lower Court and the complainant was requested to take necessary action against the petitioners. Basing on the said 2 SKS,J Crl.P.No.8263 OF 2022 complaint, the Police registered a case in Crime No.143 of 2019 for the offences punishable under Sections 188 and 427 of the IPC and after completion of investigation, they filed charge sheet, which was numbered as C.C.No.365 of 2019 and the same is pending before the learned Judicial Magistrate of First Class, Chevella, Ranga Reddy District.
3. Heard Sri M. Yadagiri, learned counsel appearing on behalf of the petitioners as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of the respondent No.1-State and Smt. Ande Vishala, learned counsel appearing on behalf of respondent No.2.
4. Learned counsel for the petitioners submitted that the complaint itself is not maintainable for the offences under Sections 188 and 427 of IPC. The petitioners never violated ex parte injunction order passed by the trial Court. He further submitted that in case of any violation of the ex parte injunction order, the complainant should file an appropriate application before the trial Court. Without considering the same, the police under the political influences simply registered the case against the petitioners. Learned counsel further submitted that charge under Section 188 of IPC cannot be framed until and unless there is written complaint by the concerned public servant who issued the order. 3
SKS,J Crl.P.No.8263 OF 2022
5. Though there are catena of judgments of the Hon'ble Supreme Court and various High Courts, in support of his contention, learned counsel for the petitioner relied on the judgment of this Court in Criminal Petition No.6537 of 2020, wherein it is observed as under:
"the Court has to satisfy itself that the accused had not only violated the order promulgated by a public servant but also the accused had actual knowledge of issuance of such order. In the case on hand, there is no whisper in the charge sheet that the accused had knowledge of the order".
6. Learned counsel for the petitioners also relied on the Judgment of this Court, dated 24.12.2021, in Criminal Petition No.9955 of 2021, wherein in paragraph No.7 it is held as follows:
"7. In Thota Chandra Sekhar vs. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godhavari District relying on various judgments including N.T. Rama Rao and the guidelines laid down by the Hon'ble Supreme Court in State of Haryana vs. Bhajan Lal, more particularly, guideline No.6, which says that 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 in 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 remedy to redress the grievance of the party, a learned Single Judge of High of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh quashed the proceedings in the said C.C by exercising power under Section 482 Cr.P.C. It is further held that proceedings shall not be continued due to technical defect of obtaining prior permission under Section
- 155 (2) of Cr.P.C and taking cognizance on the complaint filed by V.R.O and it is against the purport of Section - 195 (1) (a) of Cr.P.C."
7. Learned counsel for the petitioners further submitted that the petitioners are the farmers and they have no knowledge of the 4 SKS,J Crl.P.No.8263 OF 2022 ex parte order issued by the trial Court. The complainant has been interfering with the peaceful possession of the property of the petitioners and there is a civil dispute between respondent No.2/de facto complainant and the petitioners and as such, they are falsely implicated in this case. Hence, he prayed the Court to quash the proceedings against the petitioners/accused Nos.1 to 3.
8. On the other hand, learned counsel for respondent No.2 submitted that the petitioners disobeyed the orders passed in I.A.No.462 of 2019 in O.S.No.105 of 2019. Learned counsel further submitted that the petitioners are making illegal constructions and are interfering with the peaceful possession and enjoyment of the petition schedule property. As such, prayed the Court to dismiss the petition.
Section 188 of the I.P.C reads as follows:
Section 188 :Disobedience to order duly promulgated by public servant.
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.5
SKS,J Crl.P.No.8263 OF 2022 Explanation: It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration: An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section
9. Having regard to the rival submissions made by both the learned counsel and having gone through the material available on record, respondent No.2/de facto complainant lodged a complaint against the petitioners for not obeying the injunction orders passed by the trial Court in I.A.No.462 of 2019 in O.S.No.105 of 2019 and started construction in the petition schedule property. Perusal of Section 188 of IPC would reveal that the said Section is not applicable to the present case. Further, there is a bar under Section 195 (1) (a) of Cr.P.C., whereunder, a written complaint has to be filed by the concerned authority and it is not followed in the present case. Furthermore, in view of the observation of this Court in Criminal Petition No.9955 of 2021 in paragraph No.7, proceedings shall not be continued in view of the technical defect of obtaining prior permission under Section 155 (2) of Cr.P.C and taking cognizance of the same is bar under Section 195 (1) (a) of Cr.P.C. That apart, the petitioners are also charged for the offence punishable under Section 427 of the IPC, whereas the petitioners 6 SKS,J Crl.P.No.8263 OF 2022 are constructing the house, there are no allegations with regard to mischief to attract the offence under Section 427 of IPC, it is not mentioned in complaint or in the charge sheet and the witness statements also does not reveal any offence under Section 427 of the IPC.
10. At this stage, it is pertinent to note the observations made by the Hon'ble Supreme Court in State of Haryana and others vs. Bhajanlal 1, whereunder the following categories were illustrated, wherein the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The said categories are extracted as under:
"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.
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 1 1992 supp (1) SCC 335 7 SKS,J Crl.P.No.8263 OF 2022 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."
11. In view thereof, it can be said that category No.1, as extracted above, is relevant to the present case. Therefore, even if it is accepted in toto, in view of the illustration of the above judgment, no offence is made out under Section 427 of the IPC.
12. Accordingly, this Criminal Petition is allowed and the proceedings against the petitioners/accused Nos.1 to 3 in C.C.No.365 of 2019, on the file of the learned Judicial Magistrate of First Class, Chevella, Ranga Reddy District, are hereby quashed.
Miscellaneous applications, if any pending, shall also stand closed.
_____________ K. SUJANA, J Date: 01.03.2024 SAI