Yajjala Apparao 6 Others vs Yajjala Jyothi Priya Darshini ...
2021 Latest Caselaw 560 AP

       THE HONOURABLE SRI JUSTICE A.V.SESHA SAI

              CRIMINAL PETITION No.9247 of 2013

ORDER :

Accused Nos.2 to 8, in F.I.R.No.38 of 2013 on the file of the

Women Police Station, Eluru, West Godavari District, are the

petitioners in the present Criminal Petition, filed under

Section 482 Cr.P.C.

2. In the present case, petitioners are seeking quashment of

the said F.I.R. First respondent herein filed a private complaint

against her husband and the petitioners herein, arraying them

as accused Nos.1 to 8, on the file of the Court of the learned II

Additional Judicial First Class Magistrate, Eluru. The learned

Magistrate, by way of an order, dated 13.06.2013, referred the

said private complaint, under Section 156 (3) Cr.P.C., to the

police for investigation. On receipt of the same, police registered

the instant F.I.R. bearing No.38 of 2013 for the alleged offences

under Sections 498-A, 506 (2) r/w 34 IPC and Sections 3 and 4

of the Dowry Prohibition Act, 1961. This Court, initially on

02.09.2013, granted interim stay of all further proceedings in

F.I.R.No.38 of 2013.

3. Heard Sri Bujji Babu Davuluri, learned counsel for the

petitioners, Sri M.K.Raj Kumar, learned counsel for the first

respondent, and Sri S.Venkata Sainath, learned Special

Assistant Public Prosecutor, appearing for the second 2 AVSS,J Crl.P.No.9247 of 2013

respondent-State, apart from perusing the entire material

available on record.

4. According to the information available on record, accused

No.1 is the husband and accused No.2 is the father-in-law of the

first respondent-complainant; accused No.3 is the cousin

brother of accused No.2; accused No.4 is the wife of accused

No.3; accused Nos.5 and 7 are the sisters of accused No.1 and

accused Nos.6 and 8 are the husbands of accused Nos.5 and 7

respectively.

5. It is contended by the learned counsel for the petitioners

that the very complaint lodged by the first respondent 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 petitioners herein is liable to be quashed. It is also

the submission of the learned counsel that the reference of the

private complaint by the learned Magistrate, by way of the order,

dated 13.06.2013, is in contravention of the provisions of

Section 156 (3) Cr.P.C. and, in elaboration, it is further

submitted that the learned Magistrate ought not to have

mechanically referred the private complaint to the police.

6. To bolster his submissions and contentions, learned

counsel for the petitioners places reliance on the following

judgments:

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1. Judgment of the Honourable Apex Court in the case of Priyanka Srivastava & another v.

State of Uttar Pradesh1 and

2. the judgment in Karedla Bhagya Lakshmi v. State of A.P.2.

7. On the contrary, it is vehemently contended by the learned

counsel for the first respondent-complainant so also the learned

Special Assistant Public Prosecutor that under sub-Section (3) of

Section 156 Cr.P.C., the learned Magistrate is empowered to

refer the private complaint to the police for investigation and, as

such, the very reference, dated 13.06.2013, made by the learned

Magistrate cannot be faulted.

8. In order to adjudicate the issue on hand, it may be

appropriate and apposite to refer to the provisions of

Section 156 Cr.P.C. The said provision of law reads as under:

"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 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."

9. It is absolutely not in controversy that the learned

Magistrate is empowered to order investigation on a complaint

and such a power of the Magistrate is not disputed even by the

Criminal Appeal No.781 of 2012 decided on 19.3.2015

2020 Law Suit (AP) 337 4 AVSS,J Crl.P.No.9247 of 2013

learned counsel for the petitioners. The contention of the learned

counsel for the petitioners that the learned Magistrate grossly

erred in mechanically referring the private complaint, under

Section 156 (3) Cr.P.C., to the police is required to be examined

in the light of the judgments cited by the learned counsel for the

petitioners.

10. In Priyanka Srivastava's case (first 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 5 AVSS,J Crl.P.No.9247 of 2013

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."

11. In Karedla Bhagya Lakshmi's case (second supra), this

Court, while dealing with an identical issue, held, 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 2ndrespondent and proceed in accordance with the guidelines issued by the Hon'ble Apex Court in Priyanka Srivastava (supra)."

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

decision of the Hon'ble Apex Court in Ramdev Food Products 7 AVSS,J Crl.P.No.9247 of 2013

Private Limited v. State of Gujarat3, wherein the Hon'ble Apex

Court held that the direction under Section 156 (3) Cr.P.C. is to

be issued only after application of mind by the Magistrate.

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

following endorsement, referred the private complaint filed by

the first respondent herein to the police for investigation.

"Complainant present. Heard, complaint referred to Women Police Station, Eluru for registration and enquiry under Section 156 (3) Cr.P.C. For report, call on 21.08.2013".

14. A reading of the above said endorsement, dated

13.06.2013, made by the learned Magistrate, in clear and vivid

terms, reveals that the same is not in accordance with the

guidelines enunciated by the Honourable Apex Court in

Priyanka Srivatsava's case (first supra).

15. For the aforesaid reasons, Criminal Petition is allowed,

quashing the proceedings in F.I.R.No.38 of 2013 on the file of

the Women Police Station, Eluru, West Godavari District.

Consequently, the private complaint filed by the first respondent

herein stands restored to the file of the learned II Additional

Judicial First Class Magistrate, Eluru 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 Srivatsava's case (first supra).

    2015 Law Suit (SC) 236
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                                                    Crl.P.No.9247 of 2013

16. In view of the above conclusion, arrived at in the light of

the provisions of Section 156 (3) Cr.P.C., this Court does not

propose to consider the other contentions raised by the learned

counsel for the petitioners.

Miscellaneous Petitions pending, if any, in this Criminal

Petition, shall stand closed.

__________________ A.V.SESHA SAI, J 03rd February, 2021.

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