Andhra Pradesh High Court - Amravati

Adusumalli Sukanya, 3 Others, vs The State Of Ap Rep By Its Pp Hyd., ... on 15 February, 2021

Bench: A V Sai

       THE HONOURABLE SRI JUSTICE A.V.SESHA SAI

              CRIMINAL PETITION No.6737 of 2013

ORDER :

Heard the learned counsel for the petitioners and

Sri S.Venkata Sainath, learned Special Assistant Public

Prosecutor, appearing for the first respondent-State, apart from

perusing the entire material available on record.

2. Accused Nos.1 to 4, in F.I.R.No.82 of 2013 on the file of the

I Town Police Station, Kavali, SPSR Nellore District, are the

petitioners in the present Criminal Petition, filed under

Section 482 Cr.P.C.

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

the said F.I.R., registered for the alleged offences under

Sections 120-B, 307, 385 and 420 IPC. Second respondent

herein filed a private complaint on the file of the Court of the

learned Additional Judicial First Class Magistrate, Kavali, SPSR

Nellore District against the petitioners herein alleging

commission of the offences punishable under the above

provisions of law. The learned Magistrate, vide order, dated

03.06.2013, referred the matter to the police for investigation,

under Section 156 (3) Cr.P.C.

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

that the order passed by the learned Magistrate, referring the

private complaint to the police for investigation, under

Section 156 (3) Cr.P.C., is not in accordance with the law laid 2 AVSS,J Crl.P.No.6737 of 2013

down by the Hon'ble Apex Court in the case of Priyanka

Srivastava & another v. State of Uttar Pradesh1

5. On the contrary, it is vehemently contended by 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 03.06.2013, made by the learned

Magistrate cannot be faulted.

6. 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."

7. 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

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

Criminal Appeal No.781 of 2012 decided on 19.3.2015 3 AVSS,J Crl.P.No.6737 of 2013

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

in the light of the judgment cited supra by the learned counsel

for the petitioners.

8. In this context, it may be appropriate to refer to the

judgment of the Hon'ble Apex Court in the above referred case,

wherein 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."

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                                                          Crl.P.No.6737 of 2013




      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.

xxx

26. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial 5 AVSS,J Crl.P.No.6737 of 2013

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.

xxx

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."

9. 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 Gujarat2, 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.

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

following endorsement, referred the private complaint filed by

the second respondent herein to the police for investigation.

"Complainant is present.

Heard the learned counsel for complainant. Perused the case record. This complaint is forwarded under Section 156 (3) Cr.P.C. to the Kavali I Town Police Station for investigation and report by 01.07.2013".





    2015 Law Suit (SC) 236
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                                                      Crl.P.No.6737 of 2013




11.   A   reading   of   the    above   said   endorsement,      dated

03.06.2013, made by the learned Magistrate, in clear and vivid

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

guidelines enunciated by the Hon'ble Apex Court in Priyanka

Srivatsava's case (first supra).

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

quashing the proceedings in F.I.R.No.82 of 2013 on the file of

the I Town Police Station, Kavali, SPSR Nellore District.

Consequently, the private complaint filed by the second

respondent herein stands restored to the file of the learned

Additional Judicial First Class Magistrate, Kavali, SPSR Nellore

District 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).

13. 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