Andhra Pradesh High Court - Amravati
Smt. R.Triveni, vs State Of Andhra Pradesh, Rep. By Its ... on 18 June, 2024
1
APHC010537502015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 28022/2015
Between:
Smt. R.triveni, and Others ...PETITIONER(S)
AND
State Of Andhra Pradesh Rep By Its Principal Secretary ...RESPONDENT(S)
and Others
Counsel for the Petitioner(S):
1. BALAJI MEDAMALLI
Counsel for the Respondent(S):
1. GP FOR HOME (AP)
2. J UGRANARASIMHA
The Court made the following:
ORDER :
This writ petition is filed declaring the action of the respondents No.2
and 3 in registering and proceeding with investigation in FIR No.131/2015 for
the offence under Section 447, 506 IPC and Section 3(1)(x) of SC & ST (POA)
Act 1989 of Renigunta (U) Police Station, Chittoor District, though the
complaint itself discloses that there are financial disputes between the
petitioners and 4th respondent and the contents of the complaint also does not
satisfy the ingredients of the above said offence and thereby proceeding with
the investigation, as illegal and arbitrary.
2. The main grievance of the petitioners is that the 4th respondent
herein came to the petitioners and requested to advance a hand loan for their
family necessities saying that the same would be repaid within a period of 2
months. Believing the same the petitioners gave an amount of Rs.10,00,000/-
and at the time borrowing the said amount she executed a promissory note.
Thereupon the wife of the 4th respondent herein issued a cheque bearing
No.992128 dated 13.3.2015 drawn on ING Vysya Bank, Tirupati Branch.
When the said cheque was presented before SBI, Settipalli branch on the
same day, the same was dishonoured and returned with an endorsement
"Funds insufficient". The same was informed to the 4th respondent and his wife
on several occasions but they failed to comply with the same. Accordingly, the
petitioner got issued a legal notice under Section 142 of NI Act. They have
also issued a reply notice with false and incorrect statements alleging that on
29.3.2015 the petitioner himself and his wife trespassed into their house and
abused them in caste name. In view of the same, the petitioner filed a
complaint under Section 200 Cr.P.C under Section 138 r/w 142 of NI Act
before the II Additional Judicial First Class Magistrate, Tirupati and the same
is pending. While the matter stood thus, the 4th respondents filed a private
complaint before the V Additional Judicial Magistrate of First Class, Tirupati
and got referred to the police, wherein it was alleged that on 26.3.2015 the
petitioner himself and his wife trespassed into their house and abused them in
caste name. The respondent authorities without looking into the same and
without verifying the factual situation have registered the complaint is highly
illegal and arbitrary. Hence the present writ petition.
3. This Court vide order dated 01.09.2015 while issuing Rule Nisi, has
granted interim stay of arrest of the petitioner only in relation to Crime
No.131/2015 on the file of the Station House Officer, Renigunta (U) Police
Station, Renigunta, Chittoor District, however the investigation may go on.
4. Counter affidavit has been filed by the respondent No.2. While
denying all the allegations made in the petition, contended that, as per the
evidence of LWs.1 to 6, the prima facie case was established against the
petitioners herein. the case was charged sheeted on 16.09.2015 and the
same was returned with certain objections, this respondent has taken steps to
resubmit the same before the V Additional JFCM, Tirupati. It is further
contended that almost all the averments made in the affidavit filed in support
of the writ petition are the subject matter of investigation in the above FIR for
which a detailed investigation was conducted, completed and charge sheet
was filed on 16.09.2015. Therefore the petitioners have not made out prima
facie case warranting interference of this Court under Article 226 of
Constitution of India.
5. Heard Sri Balaji Medamalli, learned counsel appearing for the
petitioners; Sri J. UgraNarasimha, learned counsel for the un-official
respondent and Sri T M K Chaitanya, learned Government Pleader for Home
appearing for the official respondents.
6. On hearing, learned counsel for the petitioners while reiterating the
contents made in the petition, has placed reliance on a catena of decisions of
Hon'ble Supreme Court reported in (i) Joseph Salvaraja versus State of
Gujarat and others1, wherein the Apex Court held that :
In fact, all these questions have been elaborately discussed by this Court in the most oft
quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. BhajanLal, where
seven cardinal principles have been carved out before cognizance of offences, said to have
been committed, by the accused Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 is taken. The case in
hand unfortunately does not fall in that category where cognizance of the offence could have
been taken by the court, at least after having gone through the F.I.R., which discloses only a
civil dispute.
28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for
long number of years, even when admittedly a civil suit has already been filed against the
Appellant and Complainant-
Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest
the same on grounds available to him in accordance with law as per the leave granted by Trial
Court. It may also be pertinent to mention here that the complainant has not been able to
show that at any material point of time there was any contract, much less any privity of
contract between the Appellant and Respondent No. 4 -
the Complainant. There was no cause of action to even lodge an FIR against the Appellant as
neither the Complainant had to receive the money nor he was in any Crl. A. @ S.L.P. (Crl.)
No.2409 of 2007 way instrumental to telecast "GOD TV" in the central areas of Ahmedabad.
He appears to be totally a stranger to the same. Appellant's prosecution would only lead to his
harassment and humiliation, which cannot be permitted in accordance with the principles of
law.
29. Thus, looking to the matter from all angles, we are of the considered opinion that the
prosecution of the Appellant for commission of the alleged offences would be clear abuse of
the process of law.
(ii) in another case reported in Anand Kumar Mohatta and another
versus State of Delhi, Department of Home and another2, wherein it was
held that :
(2011) 7 Supreme Court Cases 59
(2019) 11 Supreme Court Cases 706
In State of Haryana and Ors. v. BhajanLal and Ors.5, this Court has set out the categories of
cases in which the inherent power under Section 482 of Cr.P.C. can be exercised. Para 102 of
the judgment reads as follows: -
4 2006 (6) SCC 736 5 (1992) Supp (1) SCC 335"102. In the backdrop of the interpretation of
the various relevant provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases wherein such power should
be exercised.
(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.
(3) Where the uncontroverted 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."
(iii) In another case reported in Abhishek versus State of Madhya
Pradesh3, wherein the Apex Court held that :
"This being the factual backdrop, we may note at the very outset that the contention
that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as
the chargesheet in relation thereto was submitted before the Court and taken on file,
needsmention only to be rejected. It is well settled that the High Court would continue to have
2023 SCC OnLine SC 1083
the power to entertain and act upon a petition filed under Section 482 CrPC to quash the FIR
even when a chargesheet is filed by the police during the pendency of such petition."
(iv) In another case reported in Manoj Sharma versus State and
others4, wherein the Apex Court held that :
The question whether a First Information Report under Sections 420/468/471/34/120-
B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under
Article 226 of the Constitution, when the accused and the complainant have compromised and
settled the 1 matter between themselves, is the question which arises for decision in this
appeal.
We have carefully considered the submissions made on behalf of the respective
parties and the facts involved in this case, and we are not inclined to accept Mr. Singh's
contention that the decision in B.S. Joshi's case requires reconsideration, at least not in the
facts of this case. What was decided in B.S. Joshi's case was the power and authority of the
High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the
Constitution to quash offences which are not compoundable. The law stated in the said case
simply indicates the powers of the High Court to quash any criminal proceeding or First
Information Report or complaint whether it be compoundable or not. The ultimate exercise of
discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court
which has to exercise such jurisdiction in the facts of each case. It has been explained that the
said power is in no way limited by the provisions of Section 320 CrPC. 5 We are unable to
disagree with such statement of law. In any event, in this case, we are only required to
consider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C.
legally and correctly.
In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the
Constitution for quashing the criminal proceedings cannot be supported. The First Information
Report, which had been lodged by the complainant indicates a dispute between the
complainant and the accused which is of a private nature. It is no doubt true that the First
Information Report was the basis of the investigation by the Police authorities, but 6 the
dispute between the parties remained one of a personal nature. Once the complainant
decided not to pursue the matter further, the High Court could have taken a more pragmatic
view of the matter. We do not suggest that while exercising its powers under Article 226 of the
Constitution the High Court could not have refused to quash the First Information Report, but
what we do say is that the matter could have been considered by the High Court with greater
pragmatism in the facts of the case.
As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C.
or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. 9.
In the facts of this case we are of the view that continuing with the criminal proceedings would
be an exercise in futility.
(v) In a case of Pepsi Foods Ltd and another versus Special
Judicial Magistrate and others5, wherein the Apex Court held that:
The questions which arise for consideration are if in the circumstances of the case, the
appellants rightly approached the High Court under articles 226 and 227 of the Constitution
(2008) 16 SCC 1
(1998) 5 SCC 749
and if so, was the High Court justified in refusing to grant any relief to the appellants because
of the view which it tool of the law and the facts of the case. We have, thus, to examine the
power of the High Court under Articles 226 and 227 of the Constitution and section 482 of the
Code.
It is settled that High Court can exercise its power of judicial review in criminal
matters. In State of Haryana and others vs. BhajanLal and others 1992 Supp (1) SCC 335,
this court examined the extraordinary power under article 226 of the Constitution and also the
inherent powers under Section 482 of the Code which it said could be exercised by the High
Court either to prevent abuse of the process of any court or otherwise to secure the ends of
justice. While laying down certain guidelines where the court will exercise jurisdiction under
these provisions, it was also stated that these guidelines could not be inflexible or laying rigid
formulae to the followed by the facts and circumstances of each case but with the sole
purpose to prevent abuse of the process of any court or otherwise to secure the ends of
justice. One of such guideline is 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. Under Article
227 the power of superintendence by the High Court is not only of administrative nature but is
also of judicial nature. This article confers vast powers on the High Court to prevent the abuse
of the process of law by the inferior courts and to see that the stream of administration of
justice remains clean and pure, The power conferred on the High Court under Articles
226 and 227 of the constitution and under Section 482 of the Code have no limits but more
the power more due care and caution is to be exercised invoking these powers. When the
exercise of powers could be under Article 227 or Section 482 of the Code it may not always
be necessary to invoke the provisions of Article 226. Some of the decisions of this Court
laying down principles for the exercise of powers by the High Court under Articles 226 and
227 may be referred to.
In BabhutmalRaichandOswal vs. Laxmibai R. Tarte and another [AIR 1975 SC 1297 = (1975)
1 SCC 858] this Court again reaffirmed that the power of superintendence of High Court
under Article 227 being extraordinary was to be exercised most sparingly and only in
appropriate cases. It said that the High Court could not, while exercising jurisdiction
under Article 227, interfere with the findings of fact recorded by the subordinate court or
tribunal and that its function was limited to seeing that the subordiante court or tribunal
functioned within the limits of its authority and that it could not correct mere errors of fact by
examining the evidence or reappreciating it. The Court further said that the jurisdiction
under Article 227 could not be exercised, "as the cloak of an appeal in disguise. It does not lie
in order to bring up an order or decision for rehearing of the issues raised in the proceedings."
The Court referred with approval the dictum of Morris, L.J. in Rex vs. Northumberland
Compensation Appeal Tribunal [1952-1 All ER 122].
In NagendraNath Bora vs. The Commissioner of Hills Division [1958 SCR 1240] this Court
observed as under:
"It is thus, clear that the powers of judicial interference under Art.227 of the Constitution with
orders of judicial or quasi-
judicial nature, are not greater than the power under Art of the Constitution, Under Art the
power of interference may extend to quashing an impugned order on the ground of a mistake
apparent on the face of the record. But under Art.
227 of the Constitution, the power of interference is limited to seeing that the tribunal functions
within the limits of its authority."
It is no comfortable thought for the appellants to be told that they could appear before
the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their
release on bail and then to either move an application under Section 245(2) of the Code or to
face trial when the complaint and the preliminary evidence recorded makes out no case
against the. it is certainly one of those cases where there is an abuse of the process of the law
and the courts and the High Court should not have shied away in exercising its jurisdiction.
Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are
devised to advance justice and not to frustrate it. In our view High Court should not have
adopted such a rigid approach which certainly has led to miscarriage of justice in the case.
Power of judicial review is discretionary but this was a case where the High Court should have
exercised it.
(vi) In another case reported in Kapil Agarwal and others versus
Sanjay Sharma and others6, wherein the Apex Court held that :
"....However, at the same time, if it is found that the subsequent FIR is an abuse of
process of law and/or the same has been lodged only to harass the accused, the same can be
quashed in exercise of powers under Article 226 of Constitution or in exercise of powers under
Section 482 Cr.PC. In that case, the complaint case will proceed further in accordance with
the provisions of the CrPC.."
7. Whereas, Sri J. Ugra Narasimha, learned counsel for the 2nd
respondent also while reiterating the contents made in the counter affidavit,
submits that the respondent police have investigated the matter and after
completion of investigation they filed charge sheet on 16.9.2015. Therefore,
the petitioners have not made out prima facie case warranting interference of
this Court under Article 226 of the Constitution of India.
8. Learned Government Pleader for Home appearing for the
respondents has furnished a copy of instructions received from the Sub
Inspector of Police, Renigunta Urban PS, Tirupati District, stating that the case
was charged on 16.9.2015 and in this case the accused was absent and
issued 82 & 83 Cr.P.C notices against the accused A1 and A2 on 9.2.2024 for
proclamation and the case is posted to 1.3.2024 for serving the above notices.
9. Learned counsel for the petitioner mainly raised the issue basing on
the objections and the existing notices in between the petitioner and un-official
(2021) 5 SCC 524
respondent and thereafter filing private complaint by the unofficial respondent
against the petitioner by narrating the provisions of SCs & STs (POA) Act. So,
prima facie it appears that the issues mentioned in the allegation and the
private complaint filed by the un-official respondent and that the allegations in
the private complaint are totally varying the allegations so in view of the same
learned counsel for the petitioner seeking quashing of the FIR.
10. On perusing the material on record and on perusing the complaints,
it is observed that, there are disputes in regard to the loan advanced to the 4th
respondent and his wife, thereby proceeding with the investigation under the
provisions of SCs & STs (POA) Act against the petitioners. But this Court is of
the opinion that whatever the objections raised by the petitioner cannot be
gone into by this Court by exercising its extraordinary jurisdiction under Article
226 of the Constitution of India. If the petitioner, so advised, he may raise his
contentions before the trial Court.
11. In view of the foregoing discussion, this Court is of the view that the
official respondent has to investigate the matter and file appropriate report as
contemplated under Section 173(2) of Cr.P.C. while considering the objections
raised by the petitioner and further the petitioner is at liberty to raise his
objections before the I.O., which shall be considered in accordance with law.
12. Today, when the matter is taken up for pronouncing the order, the
petitioner's counsel represented that in this case charge sheet has already
been filed. This Court, on perusing the latest instructions filed by the Sub
Inspector of Police, Reniguta Urban P.S.-3rd respondent, wherein it was
mentioned that the case was numbered as PRC No.13/2016 on the file of I
Additional Junior Civil Judge, Tirupati. Therefore, this Court is of the opinion
that the petitioner has to challenge the charge sheet.
13. Accordingly, Writ Petition is dismissed. However, the petitioner is
at liberty to challenge the charge sheet before the competent Court in
accordance with law, if so aggrieved. No costs.
14. As a sequel, interlocutory applications, if any pending, shall stand
closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 18 .06.2024
Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.28022 of 2015
Date : 18-06-2024
Gvl
