Telangana High Court
R.Rambabu vs State Of Telangana on 10 November, 2023
Bench: K.Surender
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NOS.4929 & 6308 OF 2019
COMMON ORDER:
1. The petitioners in Criminal Petition No.4929 of 2019 are A1,
A2, A4 to A11 and petitioner in Criminal Petition No.6308 of 2019
is A3, aggrieved by the orders passed in Crl.M.P.No.822 of 2019 in
Crime No.182 of 2018 on the file of II Additional Junior Civil Judge-
cum-XIX Additional Metropolitan Magistrate, Cyberabad, filed the
petitions.
2. The police on the basis of the complaint filed by the 2nd
respondent filed final report referring the case as false. Aggrieved
by the same, the 2nd respondent filed protest petition before the
trial Court. By impugned order vide in Crl.M.P.No.822 of 2019 in
Crime No.182 of 2018, dated 01.06.2019, the learned Magistrate
had taken cognizance against these petitioners for the offences
under Sections 448, 323, 504 r/w 149 IPC.
3. In the impugned order the learned Magistrate has taken
cognizance giving reasons at para 5, as follows:
"As seen from the protest petition, the complainant has
made out and established clear incidents of criminal
intimidation, damage of property so also criminal
intimidation. Police have closed the case as false without
submitting statements that were recorded by them before
the Court. Their statements were also video recorded but
were not produced before the Court, which clearly
establishes that S.I. of Police/D.Srinivas Rao is under the
influence of the accused as one of the accused is son of an
IAS officer. This Court is convinced with the pleadings and
statements of LW1 to LW3 and this is fit case to proceed
against accused. As such, final report is rejected and
cognizance is taken against A1 to A11 for the offence
U/s.448.323, 504 r/w 149 IPC."
4. When the case is closed, though there is no provision for
protest petition to be filed before the Court, in the event of such
protest petition or complaint being filed, the Court has to follow the
prescribed procedure under Section 200 of Cr.P.C. For the sake of
convenience, the same is extracted hereunder:
"200.Examination of complainant: A Magistrate taking
cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also
by the Magistrate: Provided that, when the complaint is made in
writing, the Magistrate need not examine the complainant and
the witnesses-
(a) if a public servant acting or- purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192: Provided further that if
the Magistrate makes over the case to another Magistrate under
section 192 after examining the complainant and the witnesses,
the latter Magistrate need not re- examine them."
5. The provision contemplates examination of complainant upon
oath and any other witnesses present. After such examination,
cognizance can be taken. Exemptions are under clauses (a) and (b),
which are not applicable in the present case.
6. From the order, it is evident that none of the witnesses were
examined, which is violation of the procedure.
7. Further, the learned Magistrate had stated that from the
protest petition, incidents of criminal intimidation, damage of
property were made out. However, Magistrate did not mention
about the facts briefly to infer that the offence was made out.
8. This Court in the Common Order dated 28.02.2023 in
Criminal Petition Nos.439 and 545 of 2023, quashed the
proceedings on 28.02.2023 finding that taking cognizance against
the accused was not in accordance with the law laid down by the
Hon'ble Supreme Court in the cases of; i) Sunil Bharti Mittal v.
Central Bureau of Investigation 1; ii) Fakhruddin Ahmad v. State
of Uttaranchal and another 2; iii) Deepak Gaba and others v.
State of Uttar Pradesh 3.
9. This Court in Criminal Petition Nos.439 and 545 of 2023,
held as follows:
"16. The Hon'ble Supreme Court further held that mere
assertion "that having perused the record and statements of
witnesses prima facie accusation is well founded" as recorded
(2015) 4 Supreme Court Cases 609)
(2008) 17 Supreme Court Cases 157
(2023 LiveLaw(SC) 3
by the learned Magistrate will not meet the requirements of
summoning the accused by application of judicious mind.
Time and again, this Court and the Hon'ble Supreme Court
has found that summoning a person as accused to face
criminal trial is a serious step taken by the criminal Court and
such summoning can only be done when the Magistrate finds
on the basis of facts that the ingredients of the offence alleged
are prima facie made out. For the said reason, cognizance
order bereft of proper reasoning is liable to be set aside and
accordingly set aside."
10. Both for the reasons of not following the procedure under
Section 200 Cr.P.C and also the order taking cognizance being
bereft of the reasons, the impugned order taking cognizance
against the petitioners by II Additional Junior Civil Judge-cum-XIX
Additional Metropolitan Magistrate, Cyberabad, is hereby set aside.
However, this order will not preclude the trial Court from taking
cognizance in accordance with the observations of the Hon'ble
Supreme Court in the above judgments.
11. Accordingly, both the Criminal Petitions are allowed.
Consequently, miscellaneous applications, if any, shall stand
closed.
_________________
K.SURENDER, J
Date: 10.11.2023
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NOS.4929 & 6308 OF 2019
Dt.10.11.2023
kvs
