Andhra Pradesh High Court - Amravati
Sri S. Nagaraja Rao Retired vs The State Of A.P. on 4 October, 2024
APHC010607192018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
FRIDAY ,THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 8609/2018
Between:
Sri S. Nagaraja Rao (retired) and ...PETITIONER/ACCUSED(S)
Others
AND
The State Of A P and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused(S):
1. Y V ANIL KUMAR (Central Government Counsel)
Counsel for the Respondent/complainant(S):
1. K V GURU PRASAD
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
VS,J
Crlp_8609_2018
ORDER:
This criminal petition is filed under Section 482 of Criminal
Procedure Code (for short "Cr.P.C.") to quash the proceedings in
C.C.No.189 of 2018 on the file of the Judicial Magistrate of First
Class, Guntakal, registered for the offence punishable under
Sections 463, 420, 506, 120B, 500 read with 34 of Indian Penal
Code (for short "I.P.C.").
2) Petitioners herein are accused Nos.1 to 9. Respondent No.2
is the complainant. Respondent No.2 herein filed private complaint
under Section 200 Cr.P.C. alleging that while he was working in the
Office of the Senior Divisional Personnel Officer, Guntakal, during
the year 2011, he was entrusted with the job of verification of the 9th
Standard certificate of S.A.Vali, S/o. Abdul Rahiman, who is a
candidate to be appointed on compassionate grounds. After
verification of the School Leaving Transfer Certificate issued by
Royal English Medium High School, Old Guntakal, respondent No.2
submitted a report stating that the said S.A.Vali possessed
educational qualification 9th Standard and the said Transfer
Certificate is genuine and the said report was submitted by
respondent No.2 only with an intention to benefit the
Compassionate Appointment of the candidate. Later, department
conducted second inquiry with regard to the genuineness of the said
Transfer Certificate.
3) Petitioner No.1 is the Retired Chief Vigilance Inspector who
conducted the second inquiry with regard to the genuineness of the
Certificate, which is initially verified by respondent No.2 herein.
Petitioner No.2 is the retired Deputy Chief Personnel officer
VS,J
Crlp_8609_2018
(Welfare & Reservations), who issued the Memorandum of Charge
Sheet dated 17.10.2012. Petitioner No.3 is the Assistant Inquiry
Officer, who conducted the Inquiry. Petitioner No.4 acted as
Disciplinary Authority on retirement of petitioner No.2 herein.
Petitioner No.5 is the Appellate Authority and Petitioner No.6 is the
Revisional Authority. Petitioner No.7 is the Deputy Chief Vigilance
Officer (General), and petitioner No.8 is the Ex.Chief Vigilance
Inspector (Personnel) and Petitioner No.9 is the Vigilance Inspector.
4) In the subsequent verification by the Department, the school
leaving transfer certificate is found to be fake as per the statement
of the Head Mistress of the said School on 28.07.2011 and based
on the said statement of the Head Mistress of the Royal English
Medium High School, Old Gurtakal, a memorandum dated
17.10.2012 was issued.
5) The said Memorandum resulted in a punishment of 'removal
from service‟ by an order dated 15.06.2015 upon which, respondent
No.2 preferred an Appeal to the Appellate Authority and the
Appellate Authority by its order dated 18.01.2016 having considered
the various submissions of respondent No.2 the punishment of
„removal from service‟ was reduced to that of 'Compulsory
retirement from service‟. Thereupon, respondent No.2 also
submitted a Revision to the Revisional Authority and the Revisional
Authority confirmed the order of the Appellate Authority, i.e.,
"Compulsory retirement from service". Respondent No.2 having
been aggrieved by the orders of the Disciplinary, Appellate and
Revisional Authority, filed O.A.No.570 of 2017 on the file of the
Central Administrative Tribunal, Hyderabad Bench, Hyderabad and
VS,J
Crlp_8609_2018
the same is pending adjudication. While things stood thus,
respondent No.2 filed a private complaint under Section 200 of the
Cr. P.C. for the offences under Section 463, 420, 506, 120B, 500
read with Section 34 of the Indian Penal Code questioning the
action of the authorities in rejecting the respondent No.2‟s genuine
request to bring the concerned Head Mistress to the enquiry
proceedings being the prime witness connected to the proceedings
against respondent No.2 and the same was numbered as
C.C.No.189 of 2018 on the file of the Judicial Magistrate of First
Class, Guntakal. The present petition has been filed to quash the
proceedings in the said C.C.No.189 of 2018 on the ground that the
allegations made in the compliant would not constitute any offence
and that the petitioners did not commit any offence as they
discharged their official duty.
6) On 16.08.2018, when the present petition came up for
admission, this Court passed the following interim order.
".........
In view of the above, there shall be interim stay of all
further proceedings in C.C.No.189 of 2018 on the file of Judicial
Magistrate of First Class, Guntakal, for a period of two months."
7) Thereafter, the said interim order has been extended from
time to time.
8) Respondent No.2 filed counter affidavit reiterating the
contentions made in the private complaint filed by him.
9) During hearing, learned counsel for the petitioners contended
that the petitioners conducted departmental enquiry against the
complainant and the complainant was found guilty and as such
VS,J
Crlp_8609_2018
awarded capital punishment of „removal from service‟. Thereupon,
complainant preferred revision, and the revisional authority modified
the order of „removal from service‟ to that of „compulsory retirement
from service‟. Having not satisfied with the same, the complainant
filed O.S.No.570 of 2017 on the file of Central Administrative
Tribunal, Hyderabad Bench, Hyderabad and the same is pending
adjudication. The petitioners being the inquiry officer, revisional
authority, appellate authority and vigilance officers, have discharged
their official responsibility as per rules in vogue. Therefore, the
proceedings against the petitioners are liable to be quashed.
10) Learned counsel for the respondent No.2/complainant
contended that the petitioners conducted enquiry according to the
directions given by the higher authorities and did not follow the
rules. Further, the petitioners rejected the genuine request of the
complainant to summon the concerned Head Mistress, who issued
the transfer certificate of S.A.Vali, during the course of the enquiry
proceedings and the petitioners have not taken their independent
decisions and acted in accordance with the directions given by the
higher authority, which act of the petitioners caused grave injustice
to the complainant and requested to dismiss the present petition.
11) 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
C.C.No.189 of 2018 on the file of the Judicial Magistrate of
First Class, Guntakal, are liable to be quashed by exercising
jurisdiction under Section 482 of Cr.P.C.?"
VS,J
Crlp_8609_2018
P O I N T:
12) The petitioners filed the present petition under Section 482 of
Cr.P.C.
13) 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 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.
14) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. was highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
15) Section 482 of the Code of Criminal Procedure empowers the
High Court to exercise its inherent power to prevent abuse of the
process of Court. In proceedings instituted on complaint exercise of
VS,J
Crlp_8609_2018
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 Kumar1"
16) In "State of Haryana v. Bhajan Lal 2 " 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
AIR 1990 SC 494
1992 Supp (1) SCC 335
VS,J
Crlp_8609_2018
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 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.
17) Keeping in view the above principles, I would like to examine
the case on hand.
18) Admittedly, in the present case, the complainant, while
working in the office of the Senior Divisional Personnel Officer,
Guntakal, submitted a report stating that one S.A.Vali possesses 9th
standard after verification of the transfer certificate issued by Royal
English Medium High School, Old Guntakal as genuine. In the
VS,J
Crlp_8609_2018
subsequent verification by the department, the said transfer
certificate was found to be fake as per the statement of the Head
Mistress of the said school on 28.07.2011. Therefore, on the ground
that the complainant issued false report to favour the S.A.Vali, who
applied for compassionate appointment, departmental enquiry was
initiated against the complainant, after due enquiry, the complainant
was found guilty and awarded major punishment of „removal from
service‟. Thereafter, he preferred revision, on such revision, the
revisional authority modified the said punishment to that of
„compulsory retirement from service‟. Aggrieved by the same, the
complainant preferred O.A.No.570 of 2017 on the file of the Central
Administrative Tribunal, Hyderabad and the same is pending
adjudication.
19) It is important to note that petitioner No.1 is the Retired Chief
Vigilance Inspector, who conducted the second inquiry with regard
to the genuineness of the Certificate, which is initially verified by
respondent No.2 herein. Petitioner No.2 is the retired Deputy Chief
Personnel officer (Welfare & Reservations), who issued the
Memorandum of Charge Sheet dated 17.10.2012. Petitioner No.3 is
the Assistant Inquiry Officer, who conducted the Inquiry. Petitioner
No.4 acted as Disciplinary Authority on retirement of petitioner No.2
herein. Petitioner No.5 is the Appellate Authority and Petitioner No.6
is the Revisional Authority. Petitioner No.7 is the Deputy Chief
Vigilance Officer (General), and petitioner No.8 is the Ex.Chief
Vigilance Inspector (Personnel) and Petitioner No.9 is the Vigilance
Inspector.
VS,J
Crlp_8609_2018
20) The main crux of the argument of the learned counsel for
respondent No.2 - complainant is that the petitioners rejected the
request of the complainant to summon the concerned Head
Mistress, who issued the school leaving transfer certificate to
S.A.Vali and they did not conduct the enquiry in a fair manner, in
accordance with the rules, but conducted the same in accordance
with the directions issued by the higher authorities.
21) These are the issues to be decided by the department, but
not in the criminal complaint. The complainant lodged a complaint
mainly on the ground that the petitioners committed offence
punishable under Section 420 of I.P.C.
22) Section 420 of I.P.C. deals with punishment for the offence of
„cheating‟.
23) 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".
24) As per the above definition, the essential ingredients to
constitute the offence of cheating are:
(i) There should be fraudulent or dishonest inducement of a person by
deceiving him;
VS,J
Crlp_8609_2018
(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
(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.
25) In "V.Y.Jose Vs. State of Gujarat3" the Apex Court laid down
following ingredients to constitute cheating.
"An offence of cheating cannot be said to have been made
out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or
misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any property
and finally intentionally inducing that person to do or omit to do
anything which he would not do or omit.
26) For the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent or
dishonest intention at the time of making promise or representation.
Even in a case where allegations are made in regard to failure on
the part of the accused to keep his promise, in absence of a
culpable intention at the time of making initial promise being absent,
(2009) 3 SCC 78
VS,J
Crlp_8609_2018
no offence under Section 420 of the Indian Penal Code can be said
to have been made out.
27) An offence of cheating may consist of two classes of cases:
(1) where the complainant has been induced fraudulently
or dishonestly. Such is not the case here;
(2) When by reason of such deception, the complainant
has not done or omitted to do anything which he would not do or
omit to do if he was not deceived or induced by the accused."
28) On perusal of the complaint filed by respondent No.2 -
complainant, this Court did not find any dishonest intention on the
part of the petitioners herein right from the beginning of the
proceedings initiated against the complainant. Therefore, the core
postulate of dishonest intention in order to deceive the complainant-
respondent No. 2 was not made out even accepting all the
averments in the complaint on their face value and, accordingly,
ruled that in such a situation continuing the criminal proceedings
against the accused would be an abuse of process of the Court.
29) The other offences allegedly committed by the petitioners are
punishable under Sections 463, 506 and 500 of I.P.C. Section 463
of I.P.C. defines "forgery". Section 506 of I.P.C. deals with "criminal
intimidation". Section 500 of I.P.C. deals with punishment for
defamation.
30) In the absence of any details as to the forgery, criminal
intimidation, and how the acts of the petitioners would constitute
defamation, in the complaint, based on bald allegations, the Court
VS,J
Crlp_8609_2018
cannot permit the defacto complainant to prosecute the petitioners
for the offences punishable under Sections 463, 506 and 500 of
I.P.C.
31) The other offence allegedly committed by the petitioners is
punishable under Section 120-B of I.P.C. i.e. punishment for
criminal conspiracy.
32) The most important ingredient of the offence „criminal
conspiracy‟ is the agreement between two or more persons to do an
illegal act or an act not illegal by illegal means (See: Kehar Singh
and others Vs. State (Delhi Admin.)4". The offence of conspiracy
is complete when two or more conspirators have agreed to do or
cause to be done an act which is itself an offence, in which case no
overt act need be established (See: Lennart Schussler and
another Vs. Director of Enforcement and another5).
33) The basic ingredients to constitute an offence punishable
under Section 120-B I.P.C. is that there must be an agreement
between the parties to do an act by illegal means or to do an act,
which is not illegal by illegal means.
34) As seen from the principle laid down by the Honourable Apex
Court in the above judgment, there must be two or more persons to
do an unlawful act by illegal means to constitute an offence
punishable under Section 120-B of I.P.C.
AIR 1988 SC 1883
AIR 1970 SC 549
VS,J
Crlp_8609_2018
35) Though the offence punishable under Section 120-B of I.P.C.
is independent offence, to prove such offence there must be an
allegation that the accused conspired together to do an illegal act.
But here, as discussed above, no such act in violation of law
committed and the conspiracy alleged against the petitioners is not
substantiated by producing prima facie material to proceed against
the petitioners. In such case, permitting the defacto complainant to
proceed against the petitioners based on the allegations made in
the complaint would amount to abuse of process of the Court.
36) As seen from the record, the petitioners, in different
capacities, conducted inquiry against the complainant and found
him guilty and he was awarded suitable punishment. It is not the
case of the complainant that the petitioners have enmity with him,
so that they submitted false report and found him guilty. Therefore, it
appears that the complainant lodged private complaint against the
petitioners to wreak vengeance against them.
37) According to guideline No.7 of guidelines formulated in "State
of Haryana v. Bhajan Lal" (referred supra), 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, the Court can exercise power
under Section 482 of Cr.P.C. and quash the proceedings. Applying
the said principle to the present facts of the case and for the other
reasons mentioned above, this Court finds that it is a fit case to
quash the proceedings.
VS,J
Crlp_8609_2018
38) Accordingly, the criminal petition is allowed. The proceedings
against the petitioners herein/accused in C.C.No.189 of 2018 on the
file of the Judicial Magistrate of First Class, Guntakal are hereby
quashed.
39) The miscellaneous petitions pending, if any, shall also stand
closed.
________________________
JUSTICE V.SUJATHA
04.10.2024
Ksp
