Andhra Pradesh High Court - Amravati
V Celluliod Entertainment Llp vs The State Of A.P on 1 July, 2024
APHC010118432018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
MONDAY ,THE FIRST DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 1882/2018
Between:
V Celluliod Entertainment Llp and Others ...PETITIONER/ACCUSED(S)
AND
The State Of A P and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused(S):
1. M/S INDUS LAW FIRM
Counsel for the Respondent/complainant(S):
1. SASANKA BHUVANAGIRI
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
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ORDER:
This petition is filed under Section 482 of Criminal Procedure Code (for
short "Cr.P.C.") to quash the proceedings in F.I.R.No.154 of 2018 on the file of
the Chilakaluripet Town Police Station, Guntur, registered for the offences
punishable under Sections 188, 418, 420 read with Section 34 of Indian Penal
Code (for short "I.P.C.").
2. Accused Nos.1 to 3 are the petitioners herein and respondent
No.2 is the complainant. Respondent No.2 filed complaint under Section 200
of Cr.P.C. before the Magistrate concerned, and the same was forwarded to
the police, upon receiving the same, police registered the said complaint as
F.I.R.No.154 of 2018. In the said complaint, it is alleged that petitioner No.1 is
a firm doing entertainment business under the name and style of "V Celluloid
Entertainment LLP", situated at K.R.Complex (three screens), Chilakaluripet.
Petitioner Nos.2 and 3 are the managing partners of petitioner No.1. On
20.10.2017 at about 11.00 am., the complainant went to cinema at V Celluloid,
K. R. Complex (3 theaters), Chilakaluripet. At the entrance of the theatre,
petitioner No.1 firm was collecting parking charges from the complainant for
his two wheeler vehicle, then the complainant informed that there is no
parking charges as per the judgment of Hon'ble A.P. High Court in "Ch.Madan
Mohan and others Vs. Municipal Corporation of Hyderabad, dated
02.05.2003". The management of the petitioner No.1 firm replied that they do
not care about the said judgment and dishonestly collected parking charges of
Rs.20/- coercively from the complainant and also from all the audience of the
locality. Petitioner No.1 firm dishonestly has been collecting parking charges
of Rs. 10/- for each cycle, Rs.20/- for each two wheeler and Rs.40/- for each
four wheeler and got wrongful gain by causing wrongful loss to the
complainant as well as the audience by disobeying the order of Hon'ble A.P.
High Court, dated 02.05.2003 in "Ch.Madan Mohan and others Vs. Municipal
Corporation of Hyderabad". Petitioner No.1 having knowledge about the A.P.
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High Court Order, is causing wrongful loss to the complainant as well as
audience, thereby cheats and dishonestly induces the complainant as well as
the audience to deliver huge amount to petitioner No.1 firm. Petitioner Nos.2
and 3 are jointly and severally liable for the criminal acts done by petitioner
No.1 firm, when a criminal act is done by several persons in furtherance of the
common intention of all, each person is liable for such act, basing on the said
complaint, police registered F.I.R.No.154 of 2018 for the offences punishable
under Sections 188, 418, 420 read with 34 of I.P.C.
3. The present petition is filed on various grounds mainly on the
ground that the Inspector of Police has no authority to register a crime in view
of bar under Section 195 of Cr.P.C. for the offence punishable under Section
188 of I.P.C.
4. Learned counsel for the petitioners while reiterating the
contentions urged in the petition contended that registration of crime against
the petitioners under Section 188 of I.P.C. itself is a serious illegality and
requested to quash the proceedings.
5. Having heard the submissions made by the learned counsel
representing both parties and on perusal of the material available on record,
the point that arises for consideration is as follows:
"Whether the proceedings against the petitioners in F.I.R.No.154
of 2018 on the file of the Chilikaluripeta Town Police Station, Khajipet,
Y.S.R.District, are liable to be quashed by exercising jurisdiction under
Section 482 of Cr.P.C.?"
The present petition has been filed under Section 482 of Cr.P.C.
6. Section 482 of Cr.P.C saves the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order
under the Code or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice. It is an obvious proposition that when a Court
has authority to make an order, it must have also power to carry that order into
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effect. If an order can lawfully be made, it must be carried out; otherwise it
would be useless to make it. The authority of the Court exists for the
advancement of justice, and if any attempt is made to abuse that authority so
as to produce injustice, the Court must have power to prevent that abuse. In
the absence of such power the administration of law would fail to serve the
purpose for which alone the Court exists, namely to promote justice and to
prevent injustice. Section 482 of Cr.P.C confers no new powers but merely
safeguards existing powers possessed by the High Court. Such power has to
be exercised sparingly in exceptional cases and this power is external in
nature to meet the ends of justice.
7. Time and again, the scope of powers of this Court under Section
482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective
pronouncements, which are as follows:
In "R.P. Kapur v. State of Punjab 1 ", the Apex Court laid down the
following principles:
"(i) Where institution/continuance of criminal proceedings against an accused
may amount to the abuse of the process of the court or that the quashing of
the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution
or continuance of the said proceeding, e.g. want of sanction;
(iii) where the allegations in the First Information Report or the complaint
taken at their face value and accepted in their entirety, do not constitute the
offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no
legal evidence adduced or evidence adduced clearly or manifestly fails to
prove the charge."
8. Section 482 of the Code of Criminal Procedure empowers the
High Court to exercise its inherent power to prevent abuse of the process of
AIR 1960 SC 866
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Court. In proceedings instituted on complaint exercise of the inherent power to
quash the proceedings is called for only in cases where the complaint does
not disclose any offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the offence of which
cognizance is taken by the Magistrate it is open to the High Court to quash the
same in exercise of the inherent powers under Section 482. It is not, however,
necessary that there should be a meticulous analysis of the case, before the
trial to find out whether the case would end in conviction or not. The complaint
has to be read as a whole. If it appears on a consideration of the allegations,
in the light of the statement on oath of the complainant that ingredients of the
offence/offences are disclosed, and there is no material to show that the
complaint is mala fide, frivolous or vexatious. In that event there would be no
justification for interference by the High Court as held by the Apex Court in
"Mrs.Dhanalakshmi v. R.Prasanna Kumar2"
9. In "State of Haryana v. Bhajan Lal3" the Apex Court considered
in detail the powers of High Court under Section 482 and the power of the
High Court to quash criminal proceedings or FIR. The Apex Court summarized
the legal position by laying down the following guidelines to be followed by
High Courts in exercise of their inherent powers to quash a criminal complaint:
"(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview of Section 155(2) of
the Code.
AIR 1990 SC 494
1992 Supp (1) SCC 335
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(3) Where the allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non- cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge."
Keeping in view the above principles, I would like to examine the case
on hand.
10. The prime offence registered against the accused is punishable
under Section 188 of I.P.C. which deals with "Disobedience to order duly
promulgated by public servant". As per Section 195 of Cr.P.C. "no Court shall
take cognizance of any offence punishable under Sections 172 to 188 (both
inclusive) of I.P.C. except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is administratively
subordinate."
11. Sections 195 to 199 of Cr.P.C. are exception to general rule that
any person can set criminal law in motion. Sections 195 to 199 Cr.P.C. would
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disclose that in respect of certain offences, criminal law can be set into motion
by certain qualified persons only. The offence under Section 188 of I.P.C. is
one such offence and the person who is entitled to set the criminal law in
motion is detailed in Section 195 Cr.P.C. So, it is apt to extract Section 188
IPC and Section 195 Cr.P.C. which are as follows:
"Section 188 - Disobedience to order duly promulgated by public servant--
Whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to abstain from a certain
act, or to take certain order with certain property in his possession or under his
management, disobeys such direction, shall, if such disobedience causes or
tends to cause obstruction, annoyance or injury, or risk of obstruction,
annoyance or injury, to any person lawfully employed, be punished with simple
imprisonment for a term which may extend to one month or with fine which
may extend to two hundred rupees, or with both; and if such disobedience
causes or trends to cause danger to human life, health or safety, or causes or
tends to cause a riot or affray, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
Explanation. -- It is not necessary that the offender should intend to produce
harm, or contemplate his disobedience as likely to produce harm. It is
sufficient that he knows of the order which he disobeys, and that his
disobedience produces, or is likely to produce, harm.
Section 195 - Prosecution for contempt of lawful authority of public servants,
for offences against public justice and for offences relating to documents given
in evidence:
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the
Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except on the
complaint in writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate;
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(b) (i) of any offence punishable under any of the following section of the
Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471,
section 475 or section 476, of the said Code, when such offence is alleged to
have been committed in respect of a document produced or given in evidence
in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the
abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except
on the complaint in writing of that Court or by such officer of the Court as that
Court may authorise in writing in this behalf, or of some other Court to which
that Court is subordinate].
(2) Where a complaint has been made by a public servant under
clause (a) of subsection (1) any authority to which he is administratively
subordinate may order the withdrawal of the complaint and send a copy of
such order to the Court; and upon its receipt by the Court, no further
proceedings shall be taken on the complaint: Provided that no such withdrawal
shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or
Criminal Court, and includes a tribunal constituted by or under a Central,
provincial or State Act if declared by that Act to be a Court for the purposes of
this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily lie from
appealable decrees or sentences of such former Court, or in the case of a civil
Court from whose decrees no appeal ordinarily lies, to the principal Court
having ordinary original civil jurisdiction within whose local jurisdiction such
Civil Court is situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior
jurisdiction shall be the Court to which such Court shall be deemed to be
subordinate;
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall
be deemed to be subordinate to the civil or Revenue Court according to the
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nature of the case or proceeding in connection with which the offence is
alleged to have been committed." "
12. Thus, the non-obstante clause with which Section 195
Cr.P.C. begins, grafts an express bar on the powers of Courts to take
cognizance of, among other offences, the offence under Section 188 of
I.P.C. without following the procedure prescribed therein. Section 195 of
Cr.P.C. clarifies that a complaint has to be lodged by the concerned
public servant before the Magistrate for taking cognizance of the offence
under Section 188 IPC. This bar engrafted under Section 195 of Cr.P.C.
is not empty rhetoric but an insurmountable rule as can be seen from the
observation of Honourable Apex Court made in respect of an offence
under Section 182 IPC in "Daulat Ram v. State of Punjab4" as follows:
"(1) No Court shall take cognizance - (a) of any offence punishable under
sections 172 to 188 of the Indian Penal Code, except on the complaint in
writing of the public servant concerned, or of some other public servant to
whom he is subordinate; The words of the section, namely, that the complaint
has to be in writing by the public servant concerned and that no court shall
take cognizance except on such a complaint clearly show that in every
instance the court must be moved by the appropriate public servant. We have
to decide therefore whether the Tahsildar can be said to be the public servant
concerned and if he had not filed the complaint in writing, whether the police
officers in filing the charge sheet had satisfied the requirements of Section
195. The words "no court shall taken cognizance" have been interpreted on
more than one occasion and they show that there is an absolute bar against
the court taking seisin of the case except the manner provided by the section."
13. Similar view was expressed by a learned single Judge of this
High Court in respect of an offence under Section 174 IPC in "M.Sudhakara
Rao v. State of Andhra Pradesh5"
AIR 1962 SC 1206
2000 (2) ALT (Crl.) 142 (A.P.)
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14. Therefore, for the offence punishable under Section 188 of I.P.C.,
cognizance can be taken on the complaint filed by the competent officer, but
not by respondent No.2 herein. Therefore, registration of crime against the
petitioners herein under Section 188 of I.P.C. and conducting investigation by
the police against the petitioners for such offence vitiates by irregularity i.e.
incompetency of the police. Hence, the offence punishable under Section 188
of I.P.C. is liable to be quashed since the very registration of crime and
conducting investigation is an irregularity.
15. The other offences registered against the petitioners are
punishable under Section 418 and 420 of I.P.C. Section 418 of I.P.C. deals
with cheating with knowledge that wrongful loss may ensue to person whose
interest offender is bound to protect. Section 420 of I.P.C. deals with Cheating
and dishonestly inducing delivery of property.
16. The word "Cheating" is defined under Section 415 of I.P.C and it
is as follows:
"415. Cheating:- Whoever by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to "cheat".
The essential ingredients to constitute the offence of cheating are:
(i) There should be fraudulent or dishonest inducement of a person by
deceiving him;
(ii) (a) The person so deceived should be induced to deliver any property
to any person, or to consent that any person shall retain any property; or (b)
The person so deceived should be intentionally induced to do or omit to do
anything which he would not do or omit if he were not so deceived; and
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(iii) In cases covered by (ii) (b), the act or omission should be one which
causes or is likely to cause damage or harm to the person induced in body,
mind, reputation or property.
17. While dealing with the offence punishable under Section 420 of
I.P.C., the Hon'ble Apex Court in "Vesa Holdings Private Limited & Another
Vs. State of Kerala & Others6", held as follows:
"It is true that a given set of facts may make out a civil wrong as also a
criminal offence and only because a civil remedy may be available to the
complainant that itself cannot be a ground to quash a criminal
proceeding. The real test is whether the allegations in the complaint
disclose the criminal offence of cheating or not. In the present case there
is nothing to show that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition precedent for
an offence under Section 420 IPC. In our view the complaint does not
disclose any criminal offence at all. Criminal proceedings should not be
encouraged when it is found to be malafide or otherwise an abuse of the
process of the court. The Superior courts while exercising this power
should also strive to serve the ends of justice. In our opinion, in view of
these facts allowing the police investigation to continue would amount to
an abuse of the process of court and the High Court committed an error
in refusing to exercise the power under Section 482 Criminal Procedure
Code to quash the proceedings."
(emphasis supplied)
18. In the present case, there is nothing to show that at the very
inception there was any intention on behalf of the accused persons to cheat
the public which is a condition precedent for an offence under Section 420
I.P.C. Further, there is no inducement to deliver any property to any person or
deceiving any person to do or omit to do anything which he would not do or
omit as defined in Section 415 of I.P.C. But, however, the case of respondent
No.2 is only that the petitioners are collecting parking fee in violation to the
orders passed by this Court in "Ch.Madan Mohan and others Vs. Municipal
(2015) 8 SCC 293
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Corporation of Hyderabad dated 02.05.2003". Even if the allegations made in
the complaint are taken on their face value, none of the allegations would
constitute an offence punishable under Section 418 of I.P.C. Further, as
discussed above, prima facie the petitioners did not disobey the order
promulgated by public servant, the offence punishable under Section 188 of
I.P.C. is not made out. Therefore, the proceedings against the petitioners for
the offence punishable under Section 188, 418 and 420 read with 34 of I.P.C.
are hereby quashed.
19. In the result, the petition is allowed. The proceedings in F.I.R.
No.154 of 2018 on the file of Chilakaluripeta Town Police Station, Guntur are
hereby quashed.
Consequently, miscellaneous applications pending if any, shall stand
dismissed.
______________________
JUSTICE V.SUJATHA
01.07.2024
Ksp
