Shaik Shaheeda, Krishna Dt., vs State Of Ap., Rep Pp, And Anr.,
2021 Latest Caselaw 521 AP

          THE HON'BLE SRI JUSTICE A.V.SESHA SAI

              CRIMINAL PETITION No.7074 OF 2013

ORDER:

This is an application, filed under Section 482 of the Code

of Criminal Procedure, 1973 (CrPC), by accused No.1 in crime

No.353 of 2013 of S.N.Puram, Vijayawada city, seeking

quashment of the said crime, registered for the offences

punishable under Sections 120B, 380, 389, 420, 427, 452, 468,

471 and 506 part-II read with 109 of the Indian Penal Code,

1860 (IPC).

2. Heard Sri K.Rajanna, learned counsel for the

petitioner, Sri S.Venkata Sainath, learned Special Assistant

Public Prosecutor for the State and Sri Suresh Kumar Reddy

Kalava, learned counsel for respondent No.2/complainant,

apart from perusing the material available on record.

3. Respondent No.2 herein filed a private complaint

before the learned I Additional Chief Metropolitan Magistrate,

Vijayawada against the petitioner and 4 others. The learned

Magistrate referred the said complaint to police under

Section156 (3) CrPC. On receipt of the said complaint, the

Station House Officer, S.N.Puram police station, Vijayawada

registered the said complaint as F.I.R.No.353 of 2013, dated

30.4.2013 for the alleged offences punishable under Sections

120B, 380, 389, 420, 427, 452, 468, 471 and 506 part-II read

with 109 IPC.

4. According to the learned counsel for the petitioner,

the very complaint lodged by respondent No.2 herein, which

culminated in registration of the subject F.I.R., is a patent

abuse of process of law, and as such, the crime registered

against the petitioner herein is liable to be quashed. In

elaboration, it is further contended by the learned counsel that

in the absence of specific allegations in the complaint against

the petitioner, the very registration of the crime is unwarranted.

It is further contended that the issue involved, and as stated in

the complaint, is purely a matter of civil nature, and in respect

of the property in question, son of the petitioner herein

instituted Original Suit No.93 of 2013 on the file of the Senior

Civil Judge, Vijayawada for cancellation of the sale deed

executed by the petitioner in favour of respondent No.2/

complainant and the suit is pending consideration before the

civil court.

It is further contended by the learned counsel that the

reference of the private complaint by the learned Magistrate to

police for investigation is contrary to the provisions of Section

156 (3) CrPC, and the learned Magistrate ought not to have

mechanically referred the private complaint to police. In

support of his submissions and contentions, the learned

counsel places reliance on the following judgments.

(a) judgment of the Hon'ble Apex Court in Priyanka

Srivastava & another v. State of Uttar Pradesh1;

(b) in Karedla Bhagya Lakshmi v. State of A.P2.

Criminal Appeal No.781 of 2012 decided on 19.3.2015

It is also the submission of the learned counsel for the

petitioner that without complying with the provisions of Section

154 (1) and 154 (3) CrPC, respondent No.2 herein filed the

private complaint before the learned Magistrate and the said

course of action is also contrary to the law laid down in the

judgments referred to, supra.

5. On the contrary, it is vehemently contended by the

learned Special Assistant Public Prosecutor and also the learned

counsel for respondent No.2/complainant, that in the absence

of necessary contingencies as stipulated under Section 482

CrPC, invocation of the provisions of Section 482 CrPC is

impermissible. It is also the submission of the learned counsel

that under sub-section (3) of Section 156 CrPC, the learned

Magistrate is empowered to refer a private complaint to police

for investigation. In support of his submissions/contentions,

learned counsel for respondent No.2/complainant takes the

support of the judgment of the Hon'ble Apex Court in Mohd.

Yousuf v. Smt. Afaq Jahan & another3.

6. In order to adjudicate the issue on hand, it would be

appropriate to refer to the provisions of Section 156 CrPC. The

said provision of law reads thus:

"Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area

2020 Law Suit (AP) 337

(2006) 1 SCC 627

within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

It is absolutely not in controversy that Magistrate is

empowered to order investigation on a complaint. Such power

of a Magistrate is not disputed by the petitioner herein. The

sustainability of the contention of the learned counsel for the

petitioner that the learned Magistrate grossly erred in

mechanically referring the private complaint under Section 156

(3) CrPC to police, is required to be examined in the light of the

judgments cited by the learned counsel for the petitioner.

7. In Priyanka Srivastava & another v. State of Uttar

Pradesh's case (1 supra), the Hon'ble Apex Court, at paragraph

Nos. 17, 18, 24, 26 and 30, held as under:

"17. The learned Magistrate, as we find, while exercising the power under Section 156 (3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156 (3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:

"156. Police officer's power to investigate congnizable case. -(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a

Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned."

18. Dealing with the nature of power exercised by the Magistrate under Section 156 (3) of the CrPC, a three- Judge Bench in Devarapalli Lakshminarayana Reddy v. V.Narayana Reddy and others [2], had to express thus:

"It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156 (1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173."

24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156 (3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due

to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.

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26. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.

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30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156 (3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind."

In Karedla Bhagya Lakshmi v. State of A.P. (2 supra), this

Court, while dealing with an identical issue, ruled, at

paragraphs 3 to 5, thus:

"3. Learned counsel for the petitioners submits that after filing the private complaint by the 2nd respondent before the learned III Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam, the learned Magistrate without following the guidelines prescribed by the Apex Court in Priyanka Srivastava & Another v. State of Uttar Pradesh (Criminal Appeal No.781 of 2012 decided on 19.3.2015), forwarded the complaint under Section 156(3) Cr.P.C., to investigate the matter. He further

requested for a direction to the learned Magistrate to follow guidelines issued by the Hon'ble Apex Court in Priyanka Srivastava (Supra).

4. The learned counsel for the 2nd respondent did not dispute the same.

5. In that view of the matter, the proceedings against the petitioners, in FIR No.25 of 2020, dated 6.2.2020 on the file of the Malkapuram L & O Police Station, Visakhapatnam, are hereby quashed. Consequently, complaint filed by the 2nd respondent is restored to the file and the learned III Additional Chief Metropolitan Magistrate, Gajuwaka, Visakhapatnam, is directed to take up the said complaint filed by the 2nd respondent and proceed in accordance with the guidelines issued by the Hon'ble Apex Court in Priyanka Srivastava (supra)."

8. On this aspect, it is also pertinent to refer to a Full

Bench decision of the Hon'ble Apex Court in Ramdev Food

Products Private Limited v. State of Gujarat4, wherein the Hon'ble

Apex Court held that the direction under Section 156 (3) CrPC

is to be issued only after application of mind by the Magistrate.

Therefore, in view of the ratio laid down by the Hon'ble Apex

Court in Priyanka Srivastava & another v. State of Uttar

Pradesh's case (1 supra), the judgment in Mohd. Yousuf v. Smt.

Afaq Jahan & another's case (3 supra), sought to be relied on by

the learned counsel for respondent No.2, would not render any

assistance to respondent No.2.

9. In the case on hand, the learned Magistrate, with the

following endorsement, referred the private complaint made by

respondent No.2 to police.

2015 Law Suit (SC) 236

"Complainant present. Heard. Referred to SHO, S.N.Puram P.S. for investigation u/S.156 (3) Cr.P.C."

A reading of the said endorsement made by the learned

Magistrate, in clear and vivid terms, discloses that the said

endorsement made by the learned Magistrate is not in

accordance with the guidelines enunciated by the Hon'ble Apex

Court in Priyanka Srivastava & another v. State of Uttar

Pradesh's case (1 supra).

10. For the aforesaid reasons, the Criminal Petition is

allowed, quashing the proceedings against the petitioner/A.1 in

F.I.R.No.353 of 2013 of S.N.Puram, Vijayawada city.

Consequently, the private complaint filed by respondent No.2

stands restored to the file of the learned I Additional Chief

Metropolitan Magistrate, Vijayawada and the learned Magistrate

shall take up the private complaint and proceed in accordance

with the guidelines issued by the Hon'ble Apex Court in

Priyanka Srivastava & another v. State of Uttar Pradesh's case (1

supra).

In view of the above conclusion, arrived at having regard

to provisions of Section 156 (3) CrPC, this Court does not

propose to consider the other contentions raised by the learned

counsel for the petitioner.

Miscellaneous petitions, if any, pending in this Criminal

Petition, shall stand closed.

_____________ A.V.SESHA SAI, J 02.02.2021 DRK

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

CRIMINAL PETITION No.7074 OF 2013

2 .2.2021

DRK