Dunga Sarojini vs State Pf A.P. Rep. By P.P 4 Others
2022 Latest Caselaw 8995 AP

                                   1



      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                               ****

CRIMINAL REVISION CASE No.1650 OF 2008

Between:

Smt. Dunga Sarojini, W/o M. Krishna Rao, Aged 38 years, Occ: Head Mistress, Z.P. High School, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District. .... Petitioner/ Defacto complainant.

Versus

1. The State of A.P., Rep. by its Public Prosecutor, High Court of A.P. .... Respondent/complainant.

2. Dhulipudi Chakram S/o Venkanna, Aged 49 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

3. Dhulipudi Rama Krishna S/o Venkanna, Aged 47 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

4. Dhulipudi Satyanarayana S/o Venkanna, Aged 52 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

5. Dhulipudi Rama Krishna S/o Satyanarayana, Aged 42 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

                               ....    Respondents/Accused 1-4.


DATE OF ORDER PRONOUNCED               :      28.11.2022


SUBMITTED FOR APPROVAL:





         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers
   may be allowed to see the Order?                   Yes/No

2. Whether the copy of Order may be
   marked to Law Reporters/Journals?                  Yes/No


3. Whether His Lordship wish to see the
   Fair copy of the order ?                           Yes/No




                                ___________________________
                                    A.V.RAVINDRA BABU, J




          * HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
           + CRIMINAL REVISION CASE No.1650 OF 2008

                               % 28.11.2022

# Between:

Smt. Dunga Sarojini, W/o M. Krishna Rao,

Aged 38 years, Occ: Head Mistress, Z.P. High School, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District. .... Petitioner/ Defacto complainant.

Versus

1. The State of A.P., Rep. by its Public Prosecutor, High Court of A.P. .... Respondent/complainant.

2. Dhulipudi Chakram S/o Venkanna, Aged 49 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

3. Dhulipudi Rama Krishna S/o Venkanna, Aged 47 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

4. Dhulipudi Satyanarayana S/o Venkanna, Aged 52 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District.

5. Dhulipudi Rama Krishna S/o Satyanarayana, Aged 42 years, Occ: Business, R/o Pasuvullanka Village, I. Polavaram Mandal, East Godavari District. .... Respondents/Accused 1-4.

! Counsel for the Petitioner : Sri V. Raja Manohar

^ Counsel for the Respondent No.1 : Public Prosecutor

^ Counsel for the Respondent Nos.2 to 5 : Sri K. Chidambaram

< Gist:

> Head Note:

? Cases referred:

This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL REVISION CASE NO.1650 OF 2008

ORDER:-

This Criminal Revision Case came to be filed by the

petitioner/defacto-complainant under Section 397 and 401 of

the Criminal Procedure Code („Cr.P.C.‟ for short) as against the

order in Criminal Miscellaneous Petition No.1002 of 2008 in

C.C.No.11 of 2006, dated 31.10.2008, on the file of the Judicial

Magistrate of First Class, Special Mobile Court, Kakinada, with a

prayer to set aside the said order.

2) The facts which lead to the filing of this Criminal

Revision Case, in brief, are that the petitioner is the defacto-

complainant on whose report Crime No.1 of 2005 came to be

registered originally under Section 3(1)(x) of SCs & STs (POA)

Act, 1989 and Section 506 of Indian Penal Code ("IPC" for

short).

3) The brief case of the petitioner according to the

report lodged by her with Sub-Inspector of Police,

I. Polavaram Police Station is as follows:

(i) The petitioner is a Teacher since 1998 in Z.P. High

School, Pasuvullanka village. One Dulipudi Chakram S/o

Dulipudi Venkanna belonged to Kapu caste and belonged to the

village of the petitioner. When an additional building under the

scheme of "Sarva Siksha Abhiyam" was constructed, the amount

Rs.2,50,000/- was released in favour of the Headmaster. The

said person demanded the petitioner to give some amount for

which she refused. After some days a cheque for Rs.40,000/-

was sent in the name of her through "Sarva Siksha Abhiyam".

Again Dulipudi Chakram threatened and demanded her for a

sum of Rs.40,000/-, else he will see that how she would

discharge the duties. On 05.01.2005 at 9-45 A.M., she was

discharging her duties. The said Dulipudi Chakram, Dulipudi

Rama Krishna, S/o Venkanna, Dulipudi Satyanarayana and

Dulipudi Rama Krishna, S/o Satyanarayana, along with 20

others attacked her school by raising slogans abusing her in the

name of caste in indecent language (actual words are edited by

the Court). They threatened that if the students pursued in their

school, they will become untouchable. So, they obstructed her

duties, abusing in filthy language in the name of caste. They

also threatened Smt. Sakile Vimala, Head Mistress, Elementary

School, beside the school of the petitioner. This is the substance

of the allegations in the report lodged by the defacto-

complainant.

(ii) The Sub Divisional Police Officer, Amalapuram,

conducted the investigation and at the time of remand

submitted the remand report before the concerned Magistrate

alleging the offence under Section 7(1)(d) of Protection of Civil

Rights Act and Sections 353 and 506 r/w 34 of IPC of Polavaram

Police Station. Under the above provisions of law, the accused

were remanded for judicial custody. While so, on the

representation of the petitioner deleting the provisions of SCs &

STs (POA) Act, it appears that the investigation was entrusted to

CID and ultimately the Deputy Superintendent of Police, CID,

RCIU, Visakhapatnam, filed charge sheet in Crime No.1 of 2015

under Sections 353, 506 r/w 34 of IPC and Section 7(1)(d) of

Protection of Civil Rights Act against A.1 to A.4 for which

cognizance was taken by the learned Magistrate. There was a

whisper in the charge sheet that on account of the outcome of

the investigation section of law was altered from Section 3(1)(x)

of SCs. & STs. (POA) Act into Section 7(1)(d) of Protection of

Civil Rights Act mainly on the ground that the version of the

petitioner as regards the so-called abuses attributed against A.1

to A.4 touching the name of the caste was not supported by any

other witnesses. So, the investigating officer deleting the

provisions of Section 3(1)(x) of SCs. & STs. (POA) Act, filed the

charge sheet as above, as such, it was taken cognizance.

(iii) It appears further that initially the defacto-

complainant was examined at the time of commencement of

trial and she was examined as P.W.13. Soon after, her

examination before the trial Court as P.W.13, the State,

represented by the Deputy Superintendent of Police,

Visakhapatnam, got filed an application under Section 216 of the

Code of Criminal Procedure ("Cr.P.C." for short). According to

the said copy of petition, the petition was signed by the senior

Public Prosecutor.

(iv) The substance of the contents of the said application

before the Court below is that originally, the Crime No.1 of 2005

was registered under Section 3 (1) (x) of SCs. & STs. (POA) Act

and Section 506 of IPC and later, it was altered into Section

7(1)(d) of Protection of Civil Rights Act and Section 353 and 506

of IPC which was resulted into filing of the charge sheet as

above. During the course of trial, P.W.13, defacto-complainant

and other witnesses revealed the offence under Section 3(1)(x)

of SCs. & STs. (POA) Act, as such, accused are liable to be

charged for the said offence and P.Ws.18 and 19 supported the

evidence of P.W.13 in this regard. The accused abused the

victim in the name of caste. So, the prayer of the learned senior

Public Prosecutor, who signed the petition, is to alter the charge

against A.1 to A.4 from that of Section 7(1)(d) of the Protection

of Civil Rights Act to Section 3(1)(x) of SCs. & STs. (POA) Act

and Section 506 of IPC and to commit the case to the Special

Court constituted under SCs.&STs. (POA) Act for trial.

(v) The learned Special Mobile Magistrate, Kakinada, after

hearing both sides, disposed Crl.M.P.No.1002 of 2008 dismissing

the same. Aggrieved by the said order, the defacto-complainant

filed the present Criminal Revision Case.

4) Now the point that arises for consideration is that as

to whether the order, dated 31.10.2008 in Crl.M.P.No.1002 of

2008 in C.C.No.11 of 2006, on the file of the Judicial Magistrate

of First Class, Special Mobile Court, Kakinada, suffers with any

illegality, irregularity and impropriety and whether it is liable to

be interfered with?

Point:-

5) The learned counsel appearing for the petitioner

would contend that the investigating officer for the reasons best

known deleted the relevant provisions of SCs. & STs (POA) Act

at the time of remand and even at the time of filings of charge

sheet and several representations that were made by the

petitioner to the higher authorities proved to be a futile and the

petitioner as P.W.13 disclosed during the course of trial the real

facts which had some support from other witnesses, as such, on

the instructions of the petitioner, the learned senior Public

Prosecutor filed the application in Crl.M.P.No.1002 of 2008

under Section 216 of Cr.P.C. and the learned Magistrate

erroneously dismissed the same and the said order is not

sustainable under law. The learned Magistrate did not consider

the evidence of the defacto-complainant and other prosecution

witnesses and failed to consider that the charge can be altered

at any time before the judgment. The evidence of P.W.13 would

clearly disclose the offence under Section 3(1)(x) of SCs. & STs.

(POA) Act, as such, basing on the evidence available on record,

charges are liable to be altered and thereupon, case is liable to

be committed to the learned Special Court constituted under the

provisions of SCs. & STs. (POA) Act.

6) The learned senior counsel, Sri K. Chidambaram,

would contend on behalf of the respondent Nos.2 to 5 that the

impugned order under challenge is absolutely sustainable under

law and facts. The learned Magistrate rightly looked into the

outcome of the investigation and further rightly pointed out that

the evidence is not sufficient to alter the charges, as such, the

Criminal Revision Case is liable to be dismissed.

7) There is no dispute that basing on the contents of

the report lodged by the defacto-complainant, FIR in Crime No.1

of 2005 was registered under the provisions of Section 3(1)(x)

of SCs. & STs. (POA) Act and Section 506 of IPC. Even at the

time of remand, the investigating officer found that the

allegations made by the defacto-complainant as regards the

abusing of her in the name of caste in the eye of public have no

support from the statements of other witnesses, as such, he

deleted Section 3(1)(x) of SCs. & STs. (POA) Act. There is also

no dispute that even the Deputy Superintendent of Police, CID,

also come to such a conclusion and confined the charge sheet

only to the provisions of Section 7(1)(d) of Protection of Civil

Rights Act and Sections 353 and 506 r/w 34 of IPC.

8) Before going to appreciate the contentions in proper

prospective, it is pertinent to look into certain scheme of

provisions in the Criminal Procedure Code to ascertain what is

the basis either for framing of original charges or for alteration

of charges. Insofar as the provisions regulating the criminal trial

before the Courts other than the Sessions Court is concerned,

Chapter-XIX of the Criminal Procedure Code deals with trial of

warrant cases by Magistrate. It contains further A & B. So,

Chapter-XIX under the caption of trial of Magistrates under

caption A relates to cases instituted on police report. Caption B

deals with the cases instituted other than the police report.

Chapter-XX of the Criminal Procedure Code deals with trial of

summons cases by Magistrates.

9) At this juncture, it is pertinent to look into Section

239 of Cr.P.C. and Section 240 of Cr.P.C.

Section 239 Cr.P.C. runs as follows:

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Section 240 Cr.P.C. runs as follows:

240. Framing of charge.

(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

10) While Section 239 Cr.P.C. deals with the powers of

the Magistrate to discharge the accused basing on the police

report and the documents sent to the Court under Section 173

of Cr.P.C. and after making such examination, if any, Section

240 Cr.P.C., on the other hand, deals with framing of charges

after consideration of the material as contemplated under

Section 239 Cr.P.C. and further the examination, if any, of the

accused done under Section 239 Cr.P.C. So, the basis for

framing of charges in cases instituted on a police report would

be that of police report and the documents enclosed thereto

under Section 173 of Cr.P.C. and further by making examination

of the accused as regards the allegations in the charge sheet

etc.

11) Now, as pointed out caption B deals with cases

instituted otherwise on police report. So, those are relating to

the cases instituted as private complaints. In this regard, the

scheme of provisions under Sections 244, 245 and 246 Cr.P.C.,

present a situation that after appearance of the accused before

the Magistrate in cases instituted otherwise than on police

report, the Magistrate is supposed to hear the prosecution and

to take all evidence as may be adduced in support of the

prosecution case. It further contemplates that the Magistrate

has every power to discharge the accused after consideration of

the evidence that was taken under Section 244 of Cr.P.C., if no

case is made out against the accused. It further contemplates

that if the evidence so taken or even prior to that there is a

ground presuming that accused had committed the offence, he

shall frame a charge in writing against the accused. It is only

after framing of charges, then an opportunity is to be given to

the accused to cross examine the witnesses whose evidence is

taken under Section 244 of Cr.P.C.

12) Insofar as the trial of cases under summons

procedure, Section 251 of Cr.P.C. contemplates questioning the

accused as to whether he pleads guilty or has any defence with

reference to the allegations made out by the prosecution. Even

the basis for such questioning under Section 251 of Cr.P.C.

would also be the averments in the charge sheet and the

supporting material thereof.

13) Now, coming to the case on hand, it is not clear as

to whether summons procedure or warrant procedure as cases

instituted on police report was followed by the trial court or not.

However, it appears that the accused are under trial for the

allegations under Sections 353, 506 r/w 34 of IPC and Section

7(1)(d) of Protection of Civil Rights Act. So, considering the said

allegations, it has to be assumed that charges appear to have

been framed against the accused by treating the offence as

warrant case. This conclusion of this Court is fortified by the

fact that the prosecution filed application before the trial Court

for alteration of charges under Section 216 of Cr.P.C. Now, the

fact is that neither the provisions relating to framing of charges

relating to the warrant cases instituted on police report nor the

provision relating to questioning the accused under Section 251

Cr.P.C. authorizes any Magistrate to make alteration of charges

by looking into the evidence that is adduced during the course of

trial. The scheme of the provisions of the Criminal Procedure

Code shows that the basis for framing of charges in a case

instituted on police report or even the basis for questioning the

accused under Section 251 of Cr.P.C. would be the charge sheet

and the supporting material thereto submitted by the

investigating officer, but, not the evidence that is adduced

during the course of trial.

14) Now, it is appropriate to look into Section 216

Cr.P.C. A close look at Section 216 Cr.P.C. means that any

Court may alter or add to any charge at any time before

judgment is pronounced and every such alteration or addition

shall be read and explained to the accused. It is altogether a

different aspect that if the alteration or addition is not going to

prejudice to the defence of the accused, the Court can go ahead

with the trial and if the alteration or addition is such that, it is

going to cause prejudice to the accused, the court may either

direct a new trial or adjudication for trial for such period as may

be necessary.

15) The case on hand altogether dealt with a different

situation that the learned Magistrate having considered the

material submitted by the investigating officer, took cognizance

for the offence alleged under Sections 353 and 506 IPC and

Section 7(1)(d) of Protection of Civil Rights Act and accordingly,

framed charges basing on the said material alone originally.

Section 216 Cr.P.C. did not deal with any situation for alteration

or addition of charges basing on the evidence that is recorded

during the course of trial. When the basis for framing of original

charge is the police report and the supporting material, the basis

for alteration or addition should also be the material available on

record, if any, overlooked by the Court at the time of framing of

charges due to inadvertence or otherwise. In my considered

view, simply because the witnesses for the prosecution

especially, P.W.13, the defacto-complainant, stick on to her

version in the report lodged by her, it does not enable the Court

to resort for alteration or addition of charge. By no stretch of

imagination, it can be held that alteration of charges or addition

of charges under Section 216 Cr.P.C. has to be done basing on

the evidence available on record.

16) As evident from the order of the learned Magistrate

in Crl.M.P.No.1002 of 2008 in C.C.No.11 of 2006, the learned

Magistrate instead of discussing about the maintainability of the

application i.e., to alter the charge or to add the charge basing

on the evidence available on record went on to decide the same

basing on merits. In this regard, this Court is of the considered

view that the offence under Section 3(1)(x) of SCs. & STs.

(POA) Act, 1989, is triable by a Special Court constituted under

the provisions of the said Act. The learned Magistrate took

cognizance only under Section 7(1)(d) of Protection of Civil

Rights Act and Sections 353 and 506 r/w 34 of IPC and he

appears to have framed the charges thereof accordingly and

commenced the trial and after examination of P.W.13, the

Crl.M.P.No.1002 of 2008 was filed before the trial Court. When

the learned Magistrate is not competent to try the cases filed

under Section 3(1)(x) of SCs. & STs. (POA) Act, 1989, virtually

he is not at all competent to look into as to whether the charges

are liable to be altered under Section 216 Cr.P.C. into that of

Section 3(1)(x) of SCs. & STs. (POA) Act, 1989.

17) Whenever any Magistrate is enquiring into any

offence, for which he is competent to try the offender after

framing necessary charges, an application under Section 216

Cr.P.C. cannot be moved before the particular Court basing on

the evidence available on record praying the Court to alter the

charges that are already framed into that of a serious offence

which is to be tried by a Special Court or any other superior

Court. Regarding the provisions in the Criminal Procedure Code

regulating trial before Court of Sessions, Section 228 of Cr.P.C.

confers powers even a Sessions Judge to frame a charge against

the accused, though the offence is not exclusively triable by a

Court of Sessions and to transfer the case to the Chief Judicial

Magistrate or Judicial Magistrate of First Class. As regards the

trial before the Magistrates be that may be under warrant

procedure or summons procedure, it does not confer any power

on the Magistrate to frame a charge for which he is not

competent to try the offender and to commit the case to the

Special Court or the Court of Sessions. So, the very prayer of

the petitioner in Crl.M.P.No.1002 of 2008 before the learned

Magistrate is unknown to the procedure.

19) Having regard to the above, this Court is of the

considered view that the filing of the petition by the learned

senior Public Prosecutor that too at the request of the defacto-

complainant (as canvassed in the Criminal Revision Case) to

alter the charges basing on the evidence available on record is

not at all proper and such an application before the trial Court is

not at all maintainable. The learned Magistrate instead of

deciding the application on maintainability went on to dismiss

the same on merits. As the application filed by the petitioner is

not in accordance with the procedure and though the learned

Magistrate instead of deciding the petition as to the

maintainability, decided the same on merits, but, this Court

cannot interfere with such an order so as to grant the relief

prayed in the Criminal Revision Case.

20) In the result, the Criminal Revision Case is

dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 28.11.2022.

Note: LR copy be marked.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL.R.C.NO.1650 of 2008

Date:28.11.2022

PGR