S.Md.Tahirulla vs Syed Sha Mohammad Jamarulla Basha
2022 Latest Caselaw 7240 AP

                                 1




THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
      CRIMINAL REVISION CASE NO.198 OF 2022


ORDER :

This Criminal Revision Case is preferred by the

petitioner/de facto complainant, being aggrieved by the

order dated 24.11.2021, passed in Crl.M.P.No.400 of

2021 in C.F.R.No.964 of 2021, by the II Additional

Judicial First Class Magistrate, Kadapa.

2. A private complaint is filed under Section 200 of

the Code of Criminal Procedure, 1973 against the

respondents/ A1 to A3 for the offences punishable under

Sections 353, 323, 448 and 506 r/w 34 IPC on the file of

the II Additional Judicial First Class Magistrate, Kadapa.

It is stated in the complaint that the de facto

complainant was appointed as Muthavalli of Dargah

Hazarat Syed Shah Ali Murad (Sunni), Kadapa. The said

appointment was objected by A1. Because of his political

influence the appointment was withheld by the A.P.

State Wakf Board. Then the de facto complainant

preferred a Writ Petition in W.P.No.15910 of 2019 before

this Court and obtained stay order against the

proceedings of the Wakf Board and thus he has been

continuing as Muthavalli. The A1 since has been

disturbing and causing hindrance to him in performing

his lawful duties, he preferred Writ Petition in

W.P.No.21425 of 2019 for police security in conducting

Urs, wherein this Court directed the Station House

Officer of Taluk Police Station, Kadapa to provide

security/bandobasth on 02.1.2020. He has also given a

report to the police against the interference of the

accused in the affairs of Dargah and its developmental

activities and their attempt to trespass with the support

of antisocial elements and political support and

especially when the accused tried to interfere in

Moharrum Flag Hoisting on 10.8.2021. On 10.8.2021 at

about 7.00 p.m., the A1 to A3 and their henchmen

forcibly trespassed into the Dargah and obstructed him

from discharging his legal duties as Muthavalli. When he

resisted them, the A2 and A3 caught hold of his collar

and slapped him and also they broke his eye glasses and

threatened him stating that they will kill him if he does

not withdraw from the Dargah. The police did not take

action on his earlier report and hence the said incident

took place. The accused were earlier convicted in

C.C.No.86 of 2000 for the offences punishable under

Sections 448, 427, 295 and under Section 506 (1) IPC.

Since the police did not register the case, he filed the

private complaint praying to forward the complaint

under Section 156 (3) Cr.P.C. to police for registration

and investigation.

3. The learned II Additional Judicial Magistrate of

First Class, Kadapa instead of invoking Section 156(3)

Cr.P.C., recorded the sworn statement of the

petitioner/complainant and after hearing him, passed

the impugned order holding that there is no assault

against public servant and there is no supporting

evidence that the accused have criminally and caused

hurt or threatened the complainant and in fact the

dispute is only of civil in nature and hence it would be

waste of time to proceed further against the accused and

thereby refused to take cognizance of the offence and

dismissed the complaint.

Being aggrieved by the said order, this Revision

Case is preferred.

4. Heard the learned counsel for the petitioner,

learned counsel for the respondents 1 to 3 (A1 to A3) and

the learned Public Prosecutor for respondent No.4 and

perused the record.

5. Learned Magistrate has gone overboard in making

observation that the complaint was not supported by

evidence since no witness is examined by the

complainant in support of his statement. According to

the learned Magistrate the facts are not satisfactory to

attract the ingredients of the alleged offences and that

the dispute is civil in nature. The order of the Magistrate

in coming to conclusion that no prima facie is made out

is illegal when the de facto complainant/accused

trespassing into the Dargah and beating the de facto

complainant. The learned Magistrate for want of

supporting evidence cannot dismiss the complaint. The

order passed by the learned Magistrate is premature and

when accusation has been made out as against the

accused that they trespassed and have obstructed the

de facto complainant while discharging his official duties

and thereafter the

Accused beat the de facto complainant., it is a matter

where the trial has to be conducted in respect of the said

accusations. Truth or otherwise of the said allegations

has to be decided in the course of trial. Time and again

this

Court and the Hon'ble Supreme Court are consistently

holding that in case when injured witness comes forward

and gives sworn statement, his statement evidence

cannot be simply brushed aside for want of

corroboration and especially at this stage of taking or not

to take cognizance of the offences. At this stage, learned

Magistrate ought not to have arrived to a conclusion that

the dispute is civil in nature when it is clearly stated of

assault etc., both in the written complaint and in sworn

statement.

In view of the aforesaid facts and circumstances

of the case, this Court is of the opinion that order passed

by the learned Magistrate is erroneous and the same is

liable to be set aside.

Accordingly, the Criminal Revision Case is

allowed by setting aside the impugned order dated

24.11.2021, passed in Crl.M.P.No.400 of 2021 in

C.F.R.No.964 of 2021 on the file of the II Additional

Judicial First Class Magistrate, Kadapa and the learned

Magistrate is directed to take the complaint on file and

proceed in accordance with law.

As a sequel, all the pending miscellaneous

applications shall stand closed.

_______________________________ K. SREENIVASA REDDY,J Date: 21.09.2022 GR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL REVISION CASE NO.198 OF 2022 Date: 21.09.2022 GR

In the result, this Criminal Revision Petition stands allowed, setting aside the judgment of the appellate court in Crl. Appeal No. 45 of 2008 and the matter is remitted to the appellate Crl.R.P. No.1110 of 2015 court for fresh disposal of the appeal, in accordance with law, as expeditiously as possible.

The parties are directed to appear before the appellate court on 15-10-2015 without further notice. Since all the parties have representation before this Court, the appellate court need not issue fresh notice to the parties.