Telangana High Court

Banothu Vijaya vs The State Of Telangana on 27 December, 2022

Bench: G.Radha Rani

      THE HONOURABLE Dr.JUSTICE G.RADHA RANI

           CRIMINAL REVISION CASE No.789 of 2018


ORDER:

This Criminal Revision Case is filed by the petitioner-de facto

complainant aggrieved by the orders passed in Crl.M.P.No.4 of 2017

in Crime No.194 of 2016 of PS LMD Colony, Karimnagar by the V

Additional Sessions Judge cum Special Judge for SCs & STs (PoA)

Act at Karimnagar, whereunder the protest petition filed by the

petitioner was dismissed vide order dated 19.01.2018.

2. The case of the petitioner was that she was a Senior

Assistant in Irrigation Department, SRST, Siricilla, Karimnagar. At

the time of the incident she was working as a Typist in the office of

the Superintendent Engineer, LMD IF-CC (II), Karimnagar.

Respondent No.2-accused No.1 was working as an attender in the

same office. In the month of May 2016, respondent No.2 requested

the petitioner to provide a loan of Rs.1,50,000/- to meet the expenses

for delivery of her daughter Najia (respondent No.3). The petitioner

expressed her inability. After few days, the respondent No.2 again Dr.GRR,J

requested the petitioner to somehow provide the loan and if she was

unable to advance the amount, to procure from someone known to her

and to give it. Considering the request of the respondent No.2, the

petitioner procured an amount of Rs.1,50,000/- from a known person

and gave it to the respondent No.2. Later, whenever the petitioner

asked the respondent No.2 to return the amount, she postponed the

same. On one day, when she sternly demanded to repay the loan

amount, the respondent No.2 replied that she was not having funds

and whenever she was having money, she would inform her over

phone. On 12.06.2016 afternoon between 2.30 PM and 3.00 PM, the

respondent No.2 called the petitioner over phone and asked her to

come to her house for repayment of money on which the petitioner

accompanied by her 12 year old daughter went to the house of the

respondent No.2 situated at LMD quarters. At that time, the daughter

of respondent No.2 (respondent No.3) was also present. The petitioner

asked the respondent No.2 to pay the money, but the respondent No.2

started abusing her touching her caste name. While the respondent

No.2 was abusing so, the petitioner started recording the same in her

cell phone. Observing the same, the respondent No.3 snatched the cell

phone from her and threw it on a stone and smashed it. When Dr.GRR,J

questioned, the respondent Nos.2 and 3 beat the petitioner and her

daughter and threatened to kill them if the petitioner again asked for

return of money and so stating both of them locked their house and

went away. The petitioner alleged that when they were being

assaulted, one tula gold chain of her daughter and the beads in the

Mangalasutram chain of the petitioner were also lost and the

neighbours of respondent No.2 witnessed the incident.

3. The petitioner on the same day went to the Police Station of

LMD Colony, Karimnagar and lodged a report. The same was

registered as Crime No.194 of 2016 for the offences under Sections

290, 323, 427 and 506 IPC and Section 3 (1) (r) and (s) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015. The Assistant Commissioner of Police,

Karimnagar conducted investigation and filed final report on

04.06.2017 by referring the complaint as false.

4. Aggrieved by the said final report, which was served upon

her, the petitioner filed a protest petition under Section 190 Cr.P.C.

before the V Additional Sessions Judge cum Special Judge for SC and

ST (PoA) Act, Karimnagar. The learned Sessions Judge conducted Dr.GRR,J

enquiry during which the sworn statement of the petitioner and the

statement of another witness, who witnessed the incident at the house

of the accused, was recorded. On considering the same, the learned

Sessions Judge dismissed the protest petition vide order dated

19.01.2018 opining that it had no merits.

5. Aggrieved by the said order dated 19.01.2018 in Crl.M.P.

No.4 of 2017 in Crime No.194 of 2016 passed by the learned V

Additional Sessions Judge cum Special Judge for SC and ST (PoA)

Act, Karimnagar, the petitioner filed this criminal revision case

contending that the learned Sessions Judge did not take into

consideration the legal aspect that what was required for charging a

person under a particular penal provision was, prima facie proof of the

occurrence of crime which could be put to trial and to the rigors of the

cross examination, the learned Judge failed to take note of the fact that

the report given by the petitioner was prompt and immediate after the

occurrence, there being no room for embellishments and tinkering the

truth. The petitioner could prima facie show that the respondent Nos.2

and 3 had committed the alleged offence. The learned Judge failed to

take into consideration the final report filed by the Investigating Dr.GRR,J

Officer. In case the Investigating Officer had no statements of

independent witnesses to prove the allegations of the accused abusing

the petitioner touching her scheduled caste, the report submitted under

Section 173 Cr.P.C. stating that the entire complaint was false, was

untenable as the accused still could have been charged under the

Indian Penal Code offences referred in the FIR under Sections 290,

323, 427 and 506 IPC. The learned Judge passed a cryptic order

without recording the basis of arriving at the view that the protest

petition had no merits and came to the conclusion that the incident had

not occurred. The learned Judge arrived at an erroneous view that the

complainant ought to have examined the witnesses nearby the house

of the accused, and failed to take note of the fact that it was difficult

for the petitioner to secure neighbouring witnesses to the house of the

accused who were strangers to her. The learned Judge erred in

rejecting the statement given on oath by the Auto rickshaw driver,

who witnessed the incident and in considering him as a planted

witness. An Auto rickshaw driver could not perse be labelled as an

unbelievable witness simply because of his profession. No reasons

were mentioned by the learned Judge to come to the view that the

Auto rickshaw driver was a planted witness. To decide whether a Dr.GRR,J

witness was a real or planted, the lawful course was to subject him to

the test of cross examination. The learned Judge mentioned in the

impugned order that the dispute appeared to be with regard to

recovery of money but failed to note that such a dispute could be

snowballed into a tiff or quarrel and the insinuation of the caste of the

petitioner by a higher caste person. The learned Judge had not

properly comprehended the dispute between the petitioner and A1 and

the probability of the accused resorting to the crimes alleged when the

petitioner along with her daughter went to their house on the very

calling of the accused No.1 and prayed to allow the revision case by

setting aside the impugned order.

6. Heard learned counsel for the petitioner, the learned

Additional Public Prosecutor and the learned counsel for the

respondent Nos.2 and 3.

7. The contention of the revision petitioner was that she filed a

protest petition aggrieved by the final report filed by the police

treating the case as false in nature. As per the petitioner, she lodged a

report before the police on 13.06.2016 at 8.30 PM about the incident

occurred on 12.06.2016 between 2.30 PM to 3.00 PM at the house of Dr.GRR,J

the accused, where she was abused in the name of her caste when she

went on the very calling of the accused for repayment of the loan

taken by her. She tried to record the same in her cell phone, but the

daughter of the accused No.1 snatched the mobile from her hands and

threw it on the ground and smashed it and she also lost her gold

pustela tadu and the gold chain of her daughter in the said incident.

The police registered the same as Crime No.194 of 2016 for the

offences under Sections 290, 323, 427 and 506 read with 34 IPC and

Section 3 (1) (r) and (s) of ST and SC (PoA) Amendment Act, 2015.

The investigation was conducted by the Assistant Commissioner of

Police, Karimnagar and as per the final report filed by the Assistant

Commissioner of Police, Karimnagar, the alleged accused did not

abuse the complainant on her caste name and except LW.2 i.e.

daughter of the complainant, none of the witnesses supported the

version of the complainant. The complainant, only to get the money

back from A1, fabricated a false complaint with the SC and ST

contents and the issue was purely civil in nature and as such, filed a

final report stating that the offences against the alleged accused were

not proved and to treat the case as false.

Dr.GRR,J

8. The contention of the learned counsel for the petitioner was

that the police could refer the case as mistake of law but could not

treat the same as false when a complaint was given by a government

servant and it would have its own ramifications. His further

contention was that if none of the witnesses supported the version of

the complainant in abusing her by caste name, the police could have

investigated into the other offences alleged by the complainant under

IPC and could have filed charge sheet for the same. He also

contended that the final report was filed in the court of the Judicial

Magistrate of First Class, Karimnagar and the protest petition was

filed before the V Additional Sessions Judge, Karimnagar and the

learned Judge, without looking into the final report, had recorded the

statements of the complainant and the supporting witness and

dismissed the same opining that it had no merits without referring to

the final report which was not in accordance with law.

9. The learned counsel for the petitioner relied upon the

judgments of the Hon'ble Apex Court in Gangadhar Janardan

Mhatre v. State of Maharashtra and others1, wherein the procedure

AIR 2004 SC 4753 Dr.GRR,J

to be followed in cases where a final report was filed by the police,

was specified as under:

"9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (i) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(l)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(l)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officers gives an opinion that the investigation has made out a case against the accused.' The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(l)(b and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(l)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s.

Dr.GRR,J

India Sarat Pvt. Ltd. V. State of Karnataka and Another, (AIR (1989) SC 885). The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the Informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code of issue of a notice in that regard.

When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) through its President v. Union of India and Others, [1997] Supreme Court Cases (Crl.)

303. It was specifically observed that a writ petition in such cases is not to be entertained."

Dr.GRR,J

10. He also relied upon the judgment of the Hon'ble Apex

Court in Chandra Babu alias Moses v. State, through Inspector of

Police2, wherein it was held that:

"16. We have referred to the aforesaid authorities to reiterate the legal position that a Magistrate can disagree with the police report and take cognizance and issue process and summons to the accused. Thus, the Magistrate has the jurisdiction to ignore the opinion expressed by the investigating officer and independently apply his mind to the facts that have emerged from the investigation."

11. A perusal of the impugned order would not disclose that the

learned Judge had gone through the final report filed by the police.

He appeared to have independently considered the statements of the

witnesses examined by him and came to an opinion that the protest

petition had no merits. The procedure contemplated under Section

190 Cr.P.C. also would disclose that the Magistrate has to

independently form an opinion to decide whether there were sufficient

grounds exists for proceeding with the case. Both the Investigating

Officer as well as the learned Judge appeared to have independently

came to the conclusion that there were no merits to proceed with the

case. The same is not against the procedure incorporated under

Section 190 Cr.P.C. The only objection raised by the learned counsel

AIR 2015 SC 3566 Dr.GRR,J

for the revision petitioner against the final report was that instead of

treating the same as false, it could have been treated as 'mistake of

law.' The Investigating Officer opined that only to get the money

back from the alleged A1, a false complaint was fabricated with SC

and ST contents and the issue was purely civil in nature. In the protest

petition filed by the petitioner-complainant, the complainant examined

herself as a witness and got examined another person, by name,

Chatharaju Shanker, who was an Auto Driver. He stated that after

dropping the passengers while he was returning, on the way he saw a

galata and he heard A1 and A2 abusing the complainant in the name

of her caste and snatching away the mobile phone and hitting the

mobile phone on the floor due to which it was broken into pieces. The

learned V Additional Sessions Judge considered the said witness as a

planted witness.

12. The contention of the learned counsel for the revision

petitioner was that for terming the witness as a planted witness, his

evidence had to be tested by way of cross-examination. It is true that

at this stage, the court could not term the witness as a planted witness

and could only see that whether there was any prima facie crime made Dr.GRR,J

out for proceeding against the accused to issue process against him or

her. Issuing process against an accused also could not be done as a

matter of fact and the court should satisfy itself that there were

sufficient grounds for proceeding against the said persons.

13. As seen from the records, the incident occurred on

12.06.2016 between 2:30 PM to 3:00 PM at the house of the accused

and the police report was given on 13.06.2016 at 8:30PM. No reasons

were given for the delay in lodging the report. The loan of

Rs.1,50,000/- was also alleged to be given in the month of May 2016

and the incident was alleged to have took place on 12.06.2016. That is

within one month of giving the loan, the complainant started

demanding for repayment. The complainant also alleged that A1

called her over phone and asked her to come to her house for

repayment of money and when she went to the house of the accused,

she and her daughter abused her in the name of her caste. When the

accused No.1 was unable to pay the money, the reason for her calling

the complainant to her house on the pretext of repayment of money

and abusing the complainant itself raises a suspicion about genuinity

of the incident. The accused being a subordinate to the complainant in Dr.GRR,J

the office, calling her superior to her house and abusing her in the

name of caste also raises a suspicion that it was a false story.

14. The final report filed by the police also would show that the

alleged incident was false. It is not the case of the police that as per

their investigation, some incident took place at the house of the

accused and none of the witnesses observed the accused abusing the

complainant in her caste name. Their case was that the complainant

only to get the money back from A1 fabricated a false case and the

issue was purely civil in nature. Their investigation also had not

disclosed commission of other offences like smashing the mobile

phone of the complainant or losing the gold chain of the daughter of

the complainant or the mangala sutram chain or beads of the said

chain of the complainant.

15. The complainant had not stated the name of the auto driver

as a witness in her report given to the police or in her 161 Cr.P.C.

statement recorded by the police. Producing a person as a witness

several months after the incident, without stating his name either in

her complaint or in her 161 Cr.P.C. statement raises a suspicion as to

his witnessing the incident. The learned Sessions judge suspected his Dr.GRR,J

statement given on oath for the said reason and termed him as a

planted witness, not basing on his profession as an auto driver but

producing him as a chance witness several months after the incident.

16. There is no need for the Sessions judge to record detailed

reasons for not issuing process against the accused persons. He need

to observe only whether there is adequate ground to initiate

proceedings against the accused and only if he does feel so, he shall

issue the process. It was of vital importance that he should apply his

mind to the material before him. In order to decide if a process should

be issued or not, the judge can take into cognizance the unlikely

instances appearing in the complaint or in the evidence led by the

complainant to defend her allegations. There is absolute discretion for

the judge to decide in the matter and the said discretion has to be

exercised judicially.

17. The Hon'ble Apex Court in the case of Nupur Talwar v.

C.B.I and another3, held that:

"The revisional court cannot go into the question of whether the reasons given by the Magistrate were good or bad, sufficient or insufficient when the revision is filed against the order of issuing process against the accused. It can only look into the matter whether there was material before the Magistrate to have

AIR 2012 SC 1921 Dr.GRR,J

a look that there was sufficient ground for issuing the process. Under Section 204 of the CrPC, issuing process need not be a reasoned order and therefore the absence of reasons does not vitiate the order. "

18. In a similar manner the Magistrate or the concerned judge

need not give a reasoned order for not issuing the process. If he is not

satisfied with the material before him to issue process, he can refuse to

do so. In the case of Smt. Nagawwa Vs Veeranna Shivallngappa

Konjalgi4, the Hon'ble Supreme Court observed that once the

Magistrate has exerted his discretion, it is not open even for the High

Court, or the Apex Court, to replace its own discretion on behalf of

the Magistrate or to study the case on merits with an aim to find out

whether the allegations in the complaint, if proved, would end in the

conviction of the accused.

19. As the learned Judge also independently came to the

conclusion that the alleged dispute appeared to be for recovery of