Surya Padma, Hyd vs Sho P.S., Kushaiguda
2023 Latest Caselaw 1427 Tel

          THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

           CRIMINAL REVISION CASE No.680 of 2015

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

Cr.P.C., is filed by the petitioner/A.3, challenging the judgment,

dated 02.02.2015, passed in Criminal Appeal No.105 of 2013 by the

III Additional Sessions Judge, Ranga Reddy District, whereby, the

judgment, dated 29.01.2013, passed in C.C.No.17 of 2012 by the

Special Magistrate-I, Cyberabad at Malkajgiri, convicting the

petitioner/A.3 of the offence under Section 28 of A.P. Apartments

(Promotion of Construction and Ownership) Act, 1987 (for short "A.P.

Apartment Act") and sentencing her to pay fine of Rs.2,000/-, in

default, to undergo simple imprisonment for a period of three

months, was confirmed.

2. I have heard the submissions of Sri K.Venu Madhav, learned

counsel for the petitioner/A.3, leaned Assistant Public Prosecutor

appearing for the respondent/State and perused the record.

3. The case of the prosecution, in brief, is as follows:

A.1 and A.2 in this case are the Promoters and Builders of

Annapurna Apartments, Premises bearing No.14-2 and 14-1/1 in

Sy.No.16, situated at Meerpet, Uppal Mandal, Ranga Reddy District.

PWs.1 to 6 are the owners of different flats in the said apartments, 2 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

having purchased the same by way of registered sale deeds from the

year 1998. The petitioner/A.3 is one of the purchasers of the flat in

the said apartment. A.1 and A.2 after raising construction, left an

area of about 1100 square feet towards common parking area in the

entire building, wherein 13 residential flats and seven mulgies are

existing. The flats have been sold 10 years back and from then

onwards, PWs.1 to 6 and other flat owners have been enjoying the

parking area as common area, without causing disturbance to one

another. The parking area was not totally sufficient, but all the

inmates of the building used to adjust the same. While the things

stood thus, A.1 and A.2, with a mala fide intention and to have

unlawful gain, sold a major portion of common parking area i.e.

420.75 feet to the petitioner/A.3, who is a close relative to them,

without knowledge and consent of other flat owners. A.4 in this case

is the husband of the petitioner/A.3, who is very arrogant. On

08.11.2008, he raised a strong objection for PWs.1 to 6 and others

for parking their vehicles in the area illegally purchased by them by

virtue of registered sale deed executed by A.1 and A.2 in favour of

the petitioner/A.3. When the flat owners questioned the

petitioner/A.3 and A.4 about the same, all of a sudden, they got wild

and abused them in filthy language and also threatened them that in

case they park their vehicles in the area purchased by them, they will

see their end and damaged the vehicles. With the above allegations, 3 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

PWs.1 to 6 jointly filed a private complaint on 20.11.2008 before the

trial Court, which was forwarded by the Magistrate concerned to the

Station House Officer, Kushaiguda Police Station under Section

156(3) of Cr.P.C. for investigation and report.

4. The Station House Officer, Kushaiguda Police Station, on

receipt of the Court referred complaint, registered a case in Crime

No.802 of 2008 under Sections 37 and 506 of IPC and also under

Section 28 of the A.P. Apartment Act. The Sub Inspector of Police,

took up the investigation, examined and recorded the statements of

PWs.1 to 6, visited the place of offence and caused enquiry in the

locality regarding the incident. While so, on 30.12.2008, A.1 and A.2

surrendered before the Court and obtained bail. Petitioner/A.3 and

A.4 also surrendered before the Court on 31.12.2008 and obtained

the bail. After completion of investigation, the Sub Inspector of

Police laid the charge sheet against A.1 to A.4 for the offences as

stated supra.

5. On appearance of the accused before the Court, copies of

documents, as required under Section 207 of Cr.P.C., were furnished

to them and were examined under Section 251 of Cr.P.C. by reading

over the accusations levelled against them. The accused pleaded not

guilty and claimed to be tried.

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                                                   Crl.R.C.No.680 of 2015

6. During the trial, the prosecution examined PWs.1 to 7 and got

marked Exs.P1 to P10. PWs.1 to 6 are the owners of the flats in

Annapurna Apartments. PW.7-B.Prabhakar is the Investigation

Officer. Ex.P1 is the complaint given by PWs.1 to 6. Exs.P2 to P7

are the copies of registered sale deeds executed by A.1 and A.2 in

favour of PWs.1 to 6. Ex.P8 is the FIR. Ex.P9 is the copy of

registered sale deed executed by A.1 and A.2 in favour of

petitioner/A.3. Ex.P10 is the copy of registered sale deed executed

by A.1 and A.2 in favour of petitioner/A.3 in respect of common

parking area.

7. After closure of the prosecution evidence, A.1 to A.4 were

examined under Section 313 of Cr.P.C. with reference to the

incriminating material appearing against them. A.1 to A.4 denied the

evidence of prosecution witnesses. On behalf of the accused, no oral

evidence has been adduced, but Ex.D1-copy of certificate of

registration along with bye-laws and Ex.D2-copy of the plan in

respect of the Annapurna Apartment were marked.

8. The trial Court after adverting to the submissions made and

material available on record, while acquitting A.4 of the offence

under Section 506 of IPC and 28 of the A.P. Apartment Act, found

A.1 to A.3 guilty of the offence punishable under Section 27 of A.P.

Apartment Act and, accordingly, convicted them and sentenced to 5 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

pay a fine of Rs.2,000/- each, in default, to undergo simple

imprisonment for three months. However, A.1 to A.3 were found not

guilty of the offence under Section 506 of IPC. Aggrieved by the

same, the petitioner/A.3 filed the subject Criminal Appeal No.105 of

2013 before the Court below and the Court below, after re-analyzing

the evidence on record, confirmed the conviction and sentence

recorded against the petitioner/A.3 by the trial Court. Aggrieved by

the same, the A.3 filed the instant Criminal Revision Case.

9. Learned counsel for the petitioner/A.3 would submit that the

impugned judgment of the Court below is erroneous and is against

the material available on record. The sum and substance of the

accusations levelled against the petitioner/A.3 that the petitioner/A.3

alleged to have been committed the offence under Section 28 of the

A.P. Apartments Act. As per the said provision, any "promoter" or

"owner" of the apartment, without reasonable excuse, fails to comply

with or contravenes any provision of Section 24 of the A.P.

Apartments Act is liable to be punished imprisonment for a term

which may extent to one year or with fine which may extend to

Rs.50,000/- or with both. In the present case, the petitioner is

neither a promoter nor owner of the apartment but she is only a

purchaser on par with the complainants i.e. other flat owners and as

such, the said provision does not attract against the petitioner/A.3.

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                                                      Crl.R.C.No.680 of 2015

Further, the Court below failed to consider that under Ex.D2-sanction

plan, there is no common parking area as claimed by the

complainants. Further, the offence under Section 28 of the A.P.

Apartment Act as well as Section 506 of IPC are non-cognizable

offences and as such the learned Magistrate, on a complaint filed by

the complainants, should have taken cognizance of the offences and

should have tried the same, instead the learned Magistrate referred

the complaint to the police concerned under Section 156(3) of

Cr.P.C. and the police, after investigated the case, filed charge sheet.

Thus, the entire process of investigation and trial is illegal. Further

no orders under Section 155(2) of Cr.P.C. were obtained from the

Magistrate concerned by the police before commencing of the

investigation and as such, initiation of criminal proceedings itself is

illegal. Further, without there being any evidence, muchless cogent

and convincing evidence, conviction was recorded by the trial Court

against the petitioner/A.3 of the offence under Section 28 of the A.P.

Apartment Act, which was confirmed by the Court below, which is

erroneous. The petitioner/A.3 is entitled for clean acquittal at the

hands of this Court by exercising Revisional Jurisdiction under

Section 397 and 401 of Cr.P.C. and ultimately prayed to allow the

Criminal Revision Case as prayed for.

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                                                      Crl.R.C.No.680 of 2015

10. On the other hand, the learned Assistant Public Prosecutor

supported the impugned judgment and contend that there is nothing

to interfere with the impugned judgment passed by the Court below

which is based on sound reasoning. The petitioner/A.3 had illegally

purchased the common area which is meant for parking of the

vehicles of the flat owners and as such, she is guilty of Section 28 of

the A.P. Apartment Act. There are no circumstances to interfere with

the impugned judgment passed by the Court below by exercising

power under Sections 397 and 401 of Cr.P.C. The contentions raised

on behalf of the petitioner/A.3 are untenable and ultimately prayed

to dismiss the Criminal Revision Case.

11. In view of the above submissions, the point that arises for

determination in this Criminal Revision Case is as follows:

"Whether the impugned judgment, dated 02.02.2015, passed in Criminal Appeal No.105 of 2013 by the III Additional Sessions Judge, Ranga Reddy District, is legally sustainable?"

POINT:-

12. I have given thoughtful consideration to the above rival

submissions and meticulously gone through entire material on record.

This Court is aware of the settled legal position that this Court, in

exercise of its Revisional jurisdiction under Sections 397 and 401 of 8 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

Cr.P.C., cannot interfere with the concurrent findings of fact recorded

by the Courts below, unless they are perverse or arrived at ignoring

material evidence. Further, the Revisional power of this Court under

Sections 397 and 401 of Cr.P.C., is not to be equated with that of an

appeal. But however, when the decision of the Court below is

perverse or untenable in law or grossly erroneous or glaringly

unreasonable or based on no material or where the material facts are

wholly ignored or where the judicial discretion is exercised arbitrarily

or capriciously, this Court can interfere with the said decision in

exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables

the High Court to exercise all powers of appellate Court, if necessary,

in aid of power of superintendence or supervision, as a part of

Revisional power. Section 397 of Cr.P.C. confers power on the High

Court or Sessions Court, as the case may be, for the purpose of

satisfying itself or himself as to the correctness, legality or propriety

of any finding sentence or order, recorded or passed, and as to the

regularity of any proceeding of such inferior court. Thus, a duty rests

on the High Court under Sections 397 and 401 of Cr.P.C. to correct

manifest illegality resulting in gross miscarriage of justice.

13. In the instant case, it is an admitted fact that Annapurna

Apartment was constructed by A.1 and A.2 and they have sold some

flats to different persons, including PWs.1 to 6. It is also an admitted 9 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

fact that there are mulgies attached to the apartment and that an

extent of about 1100 square feet was left over towards parking,

which is a common area. Section 28 of the A.P. Apartment Act reads

as follows:

"Any promoter or owner of the apartment without reasonable excuse fails to comply with or contravenes any provision of Section 4, Section 5, Section 6, Section 7, Section 24, Section 25, Section 27, shall be punishable with imprisonment for a term which may be extended to one year or with fine which may be extended to fifty thousand rupees or with both."

A plain reading of the above extracted of Section 28 of the A.P.

Apartment Act makes it clear that any promoter or owner of the

apartment, without reasonable excuse, fails to comply with or

contravenes any provision of Sections 4, 5, 6, 7, 24, 25 and 27 of

the Act shall be punishable with imprisonment for a term which may

be extended to one year or with fine which may be extended to

Rs.50,000/- or with both. As rightly contended by the learned

counsel for the petitioner/A.3, the petitioner/A.3 is neither a

"promoter" nor an "owner" of the Annapurna Apartment. She is a

purchaser of a flat in the said apartments along with PWs.1 to 6.

Further, in the year 2008, Annapurna Apartments Flat Owners

Association was formed and registered as per Ex.D1-certificate.

PW.1 was elected as Secretary, PW.3 as the President and PW.4 was

elected as General Secretary to the said association. It is also

evident from the material placed on record that PWs.1 to 6 have filed 10 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

O.S.No.2326 of 2008 on the file of the Additional District Judge,

Ranga Reddy District to declare the sale deed executed by A.1 and

A.2 in favour of the petitioner/A.3 in respect of the common parking

area as null and void, in their individual capacity and not on behalf of

the flat owners association. The subject criminal case is also filed by

PWs.1 to 6 against the accused in their individual capacity. It is also

an admitted fact that PWs.1 to 6 and other flat owners did not file

any declaration before the competent authority as required under

law. It is also an admitted fact that after the purchase of their

respective flats, PW.1 erected separate gate to his flat, similarly

PW.4 constructed a separate staircase to his flat and also a grill and

PW.3 also erected a grill window in her flat. For the above violations,

A.4 filed a complaint with the authorities concerned against PWs.1, 3

and 4. It is also an admitted fact that the above constructions made

by PWs.1, 3 and 4 were not regularized by the association through

the competent authority. Thus, it is culled out from the record that

there are several deviations as per the sanctioned plan. Further, in

Ex.P1 complaint, the date of offence was mentioned as 08.11.2008

and Ex.P1 complaint was filed before the Court on 26.11.2008.

Thus, there was a delay of 18 days in lodging Ex.P1 complaint.

There is no explanation from the side of prosecution with regard to

the said delay. Further, there are latches on the part of the PW.7-

Inveistigation Officer in conducting proper investigation in this case.

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                                                     Crl.R.C.No.680 of 2015

PW.7, in his cross-examination admitted that he did not verify the

bye-laws of the apartment and the provisions of Section 28 of A.P.

Apartment Act would not come under the purview of the police; that

the date of examination and recording of statements of PWs.1 to 6

under Section 161 of Cr.P.C. is not mentioned by him; that he did

not take the measurements of the common parking area to find out

the truth.

14. Learned counsel for the petitioner/A.3 would contend that the

offences under Section 28 of the A.P. Apartment Act and Section 506

of IPC are non-cognizable offences and the police investigated the

offences without obtaining prior permission of the Magistrate

concerned and hence, investigation conducted by the police is

violative of the provisions Sub Section 2 of Section 155 of Cr.P.C. In

my opinion, this contention of the learned counsel is correct. It is

worth mentioning that the private complaint lodged by PWs.1 to 6

does not disclose the commission of any cognizable offences. On the

contrary, it discloses the commission of non-cognizable offences, i.e.

offences punishable under Sections 28 of the A.P. Apartment Act and

506 of IPC. As per Sub Section 2 of Section 155 of Cr.P.C. debars a

Police Officer from investigating the non-cognizable offences, without

the order of a Magistrate having power to try such cases. Where a

complaint discloses a cognizable as well as non-cognizable offences, 12 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

the police is not debarred from investigating any non-cognizable

offences which may arise on the same facts and he can include that

non-cognizable offence in the charge sheet, which he presents for a

cognizable offences. However, if the information discloses only a

non-cognizable offence, the police officer cannot investigate the said

offence, without the requisite sanction under Sub Section 2 of

Section 155 of Cr.P.C. In the instant case, admittedly, no permission

had been obtained by the police to investigate into the offences

punishable under Sections 28 of the A.P. Apartment Act and Section

506 of IPC. Under these circumstances, the police cannot be allowed

to flout the mandatory provision of Sub Section 2 of Section 155 of

Cr.P.C. That being so, the investigation conducted in the instant

case is in violation of mandatory provision of Sub Section 2 of

Section 155 of Cr.P.C. bears a stamp of illegality.

15. Viewed from any angle, it is clear that the prosecution could

not establish the guilt of the petitioner/A.3 of the offence under

Section 28 of the A.P. Apartment Act. The trial Court, while rightly

acquitting the petitioner/A.3 of the offence under Section 506 of IPC,

erroneously convicted her of the offence under Section 28 of the A.P.

Apartment Act. None of the ingredients of Section 28 of the A.P.

Apartment Act are made out against the petitioner/A.3. Viewed thus,

the impugned judgment is improper and irregular, which resulted in 13 Justice Juvvadi Sridevi Crl.R.C.No.680 of 2015

miscarriage of justice and hence, brooks interference by this Court in

exercise of Revisional jurisdiction under Sections 397 and 401 of

Cr.P.C.

16. In the result, the Criminal Revision Case is allowed by setting

aside the judgment, dated 02.02.2015 passed in Criminal Appeal

No.105 of 2013 by the III Additional Sessions Judge, Ranga Reddy

District. Consequently, the petitioner/A.3 is acquitted of the offence

under Section 28 of the A.P. Apartment Act. Fine amount, if any,

paid by her, shall be refunded to her.

Miscellaneous applications, if any, pending in this Criminal

Revision Case, shall stand closed.

_______________ JUVVADI SRIDEVI, J 28th March, 2023 Ksk