Andhra Pradesh High Court - Amravati

P.Siva Prasad vs Bodipudi Ramanamma on 15 December, 2023

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

            CRIMINAL PETITION No.3298 OF 2019

ORDER:

The present Criminal Petition is filed under Section 482 of

the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to quash

the proceedings against the petitioners/A1, A3 and A4 in

C.C.No.388 of 2019 on the file of the V Additional Junior Civil

Judge, Guntur.

2. The 1st respondent herein, who is the defacto complainant

(hereinafter called as 'defacto complainant'), has lodged a report

to the police alleging that the accused herein have scolded in

vulgar language and threatened to evict from the house,

otherwise, they will kill the 1st respondent and his family

members and there is no such hesitation to go to jail.

3. Basing upon the said report lodged by the defacto

complainant, the police registered the case in Crime No.295 of

2014 for the offences under Sections 323, 506 I.P.C. r/w Section

34 I.P.C. and investigated into the case and filed charge sheet

against the accused with the following averments:

4. About 30 years back, the defacto complainant and her

husband requested the father of the 1st accused and husband of

the 2nd accused to give some house site at 7/7, Srinagar,

Guntur, build one asbestos sheeted house and residing into it by

grazing the buffalos and while the things stood thus, A1 and A2

are forcing the defacto complainant to vacate the house. In this

connection, some grudges that are prevailing in between the

defacto complainant and the accused are surfaced.

5. Accusation precisely: On 01.05.2014 at about 8-30 a.m.,

the A1 and A2 went to the house of the defacto complainant,

made quarrel with them, beat them with hands and abused

them in filthy language and threatened them with dire

consequences.

6. While filing the charge sheet, the police have deleted the

names of A3 and A4 from the array of the accused. Aggrieved by

deletion of the names of A3 and A4 from the array of the accused

in the charge sheet, the defacto complainant herein filed a

Protest Petition before the V Additional Junior Civil Judge,

Guntur, vide Crl.M.P.No.5836 of 2015, and the learned Judge,

by order dated 23.09.2016, has allowed the said petition and

added A3 and A4 as accused, asserting that the investigating

officer did not include A3 and A4 as accused and there is prima

facie case against the A3 and A4.

7. On perusing the sworn statement and the report lodged by

the defacto complainant and other material available on record,

it is alleged that A1 to A4 beat the defacto complainant and also

threatened them. On perusal of the order, learned Magistrate

has misunderstood the array of accused wrongly. In fact, the

police have deleted the names of A3 and A4 in the charge sheet

from the array of the accused, but the learned Magistrate has

stated that police have deleted the names of A2 and A3. As seen

from the orders and the charge sheet, there is no specific

allegation against A3 and A4 and it is also pertinent to note that

the learned Magistrate has not examined the defacto

complainant on oath while adding A3 and A4 basing upon the

protest petition.

8. Under Section 200 Cr.P.C., it is mandatory that the Court

while taking cognizance of an offence on complaint shall examine

upon oath the complainant and the witnesses present, if any,

and even though law is otherwise with regard to the witnesses, it

is mandatory on the part of the Court to examine the

complainant on oath.

9. After filing the charge sheet, the Court below has registered

the case as C.C.No.388 of 2019 on the file of the V Additional

Junior Civil Judge, Guntur, which has been assailed in the

present Criminal Petition on the ground that the A1 and A2 are

the original owners of the property and they have filed a civil suit

O.S.No.310 of 2014 on the file of the IV Additional Senior Civil

Judge, Guntur, for eviction of the defacto complainant and the

same was decreed, when the accused filed the suit for eviction,

then the defacto complainant has filed the present complaint to

convert the civil dispute into a criminal dispute and they have

not committed any offence as alleged in the complaint or charge

sheet and it is an admitted fact that they are the owners of the

property.

10. Learned counsel for the petitioners has relied on the following judgments in support of his contentions:

(1) Usha Chakraborty and another vs. State of West Bengal and another1;

(2) Anand Kumar Mohatta and another vs. State (Govt. of NCT of Delhi) Department of Home and another2; (3) Mahmood Ali and others vs. State of U.P. and others3; and (4) Mohandas and others vs. State of Kerala and others4;

11. Learned counsel appearing for the petitioners/accused has

relied on the judgments of the Apex Court in Usha Chakraborty's

2023 LiveLaw (SC) 67

Criminal Appeal No.1395 of 2018 dated 15.11.2018 of the Supreme Court

2023 LiveLaw (SC) 613

CRL.MC.No.8096 of 2017 dated 26.07.2023 of the High Court of Kerala at Ernakulam

case (1 supra) and the High Court of Kerala at Ernakulam in

Mohandas's case (4 supra) for the proposition that it is well

settled that before a Magistrate can be said to have taken

cognizance of an offence, it is imperative that he must have

taken notice of the accusations and apply his mind to the

allegations made in the complaint or in the police report or the

information received from a source other than a police report.

Learned counsel for the petitioners would submit that the

learned Magistrate has not assigned reasons while taking

cognizance against A3 and A4.

12. Learned counsel has relied on the judgments of the Apex

Court in Anand Kumar Mohatta's case (2 supra) and Mahmood

Ali's case (3 supra), where in both cases, the Apex Court has

delineated the guidelines framed in the case of State of Haryana

and others vs. Bhajan Lal and others5, which was succinctly

stated herein where the allegations made in FIR even if they are

taken on face value and accepted in their entirety do not prima

facie constitute any offence and the evidence collected in support

of the case do not disclose the commission of any offence and

when the criminal proceedings are manifestly attended with

1992 Supp. (1) SCC 335

malafide or maliciously instituted with an ulterior motive for

wreaking vengeance or with a view to spite the due to private

and personal grudge can be quashed and, in the present case,

the present criminal proceedings are initiated to wreak

vengeance, but for filing of the civil suit, hence, prayed to quash

the case.

13. In the present case, though the Court has misunderstood

the array of the accused, but however, has assigned reasons for

taking cognizance. Therefore, the purport of the judgment of the

High Court of Kerala at Ernakulam in Mohandas's case (4 supra)

that the Court has not applied his mind is untenable.

14. In order to invoke Section 34 I.P.C., against the accused

Nos.3 & 4, prior concert or a pre-arranged plan has to be

established and though common intention has to be inferred

from one's act, or conduct and other relevant circumstances, it is

not necessary that any overt-acts must have been done by any

particular accused. It is enough if the criminal act has been

done by one of the accused in furtherance of the common

intention. It requires pre-arranged plan because before a person

can be vicariously convicted for the criminal act of another, the

act must have been done in furtherance of the common intention

of them all. In other words, there must have been prior meeting

of minds. The plan need not be elaborate nor is a long interval of

time required.

15. In the instant case, there is no evidence to reasonably to

infer that the accused Nos.3 & 4 had a pre-meeting of mind or

pre-concert with accused Nos.1 & 2 and that in furtherance of

such common intention, to bring criminal act of another to fix

for vicariously liability for the criminal act of another.

16. As seen from the statements of L.Ws.1, 2 and 3, there is no

specific allegation against A3 and A4 when the defacto

complainant has warned the accused A3 and A4, they were

remained static at the scene of offence, but they have not

participated or have not threatened with dire consequences or

have beat the defacto complainant or her family members.

Therefore, there is no specific allegation against A3 and A4.

17. For the aforesaid reasons, the case against A3 and A4 is

liable to be quashed.

18. Learned counsel for the petitioners would mainly contend

that there were civil disputes prior to the filing of this complaint

and in pursuant to the civil dispute, the present false complaint

was inflicted and on perusal of charge sheet coupled with

Section 161 Cr.P.C. statements, it manifests that no prima facie

case is made out against the accused, hence, it is prayed to

quash the proceedings.

19. On perusal of Section 161 Cr.P.C. statements, it can be

said that there are assertions in Section 161 Cr.P.C. statements

about the civil dispute and the list of witnesses have

categorically stated to the accused to settle the civil dispute, if

any, through Court, despite that the petitioners have scolded in

filthy language and threatened with dire consequences and the

allegations in the charge sheet as well as in Section 161 Cr.P.C.

statement constituted the ingredients of Sections 509, 323 and

506 I.P.C. read with Section 34 I.P.C.

20. Merely a civil dispute in between the petitioners and the

defacto complainant, it cannot be said that a complaint was

falsely instigated against the petitioners/accused herein, indeed

the civil dispute is the causative or conducive for the initiation of

criminal proceedings.

21. The Apex Court in the judgment passed in Rajiv Thapar

and others vs. Madan lal Kapoor6, also held that High Court in

exercise of its jurisdiction under Section 482 Cr.P.C. must make

(2013) 3 SCC 330

just and rightful choice at this stage neither truthfulness of the

allegations levelled by the complainant can be evaluated nor can

weight of defence evidence be determined. Where allegations

bring out all ingredients of charge levelled, and material placed

before Court prima facie shows truthfulness of allegations, trial

must proceed even when accused is successful in raising some

suspicion or doubt in allegations leveled. This is so because it

would result in giving finality to the accusations levelled by the

prosecution/complainant, without allowing the prosecution or

the complainant to adduce evidence to substantiate the same.

22. In the case of Medchl Chemicals & Pharma (P) Ltd. vs.

Biological E. Ltd.7, the Supreme Court held as under:

"Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint."

23. At present stage, this Court is only required to evaluate the

material and documents available on record with a view to

(2000) 3 SCC 269

finding out if the facts emerging therefrom taken at their face

value disclose the existence of all the ingredients constituting the

alleged offence and no legal grounds raised by the petitioner/A1

to quash.

24. In the present case, prima facie constitute an offence

against accused No.1 as held by the Apex Court when prima

facie case constitutes an offence this Court cannot exercise the

power vested under section 482 Crl.P.C to quash the case.

25. Therefore, the Criminal Petition is dismissed against 1st