Criminal - Quashing of proceedings - Section 420 of Indian Penal Code, 1860 (IPC) and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Present petition filed for seeking quashing of proceedings for offences of fraud and offences under Act - Whether Petitioner was entitled for quashing of proceedings - Held, fact that case was referred as false by final report of police - Magistrate already take cognizance of offences by applying judicial mind against Petitioner and then committed case to Court of Session - Once Magistrate take cognizance of entire offences against Petitioner, then he could not again take cognizance of offences against Petitioners basing on very same facts - Therefore cognizance of offences against Petitioners for second time, was liable to be quashed - Entire proceedings against Petitioners was quashed - Petition allowed.
THE HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL PETITION No.12956 of 2010
dated:13-09-2013
Meka Karthik and others..... Petitioners
State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of A.P.,
Hyderabad and another.....Respondents
1.1999 CRI. L.J. 3450
2.1991 CRI. L.J. 3144(1)
3.AIR 1964 Supreme Court 1541
THE HON'BLE SRI JUSTICE R. KANTHA RAO
CRIMINAL PETITION No. 12956 of 2010
O R D E R :
This Criminal Petition is filed under Section 482 of the Code of Criminal
Procedure by the petitioners/Accused Nos.1 to 3 in Crime No.24 of 2010 of
Chirala I Town Police Station to quash the entire proceedings in P.R.C.No.46 of
2010 on the file of the Additional Judicial Magistrate of the First Class,
Chirala, against them.
2. I have heard Sri Bal Reddy, learned senior counsel, representing Sri
Nimmagadda Satyanarayana, learned counsel for the petitioners-A.1 to A.3 and the
learned Additional Public Prosecutor, appearing for the 1st respondent-State.
There is no representation for the 2nd respondent-de facto complainant.
3. The 2nd respondent-de facto complainant gave a report to the Station
House Officer, Chirala I Town Police Station, alleging that the 1st petitioner-
A.1 loved her and developed physical contacts with her by promising to marry
her. Subsequently, when the 2nd respondent-de facto complainant insisted to
marry, he refused to marry her and the petitioners 2 and 3 (A.2 and A.3), being
the mother and maternal uncle of the 1st petitioner-A.1, supported the 1st
petitioner-A.1 and also abused the 2nd respondent-de facto complainant in filthy
language indicating her caste name. According to the 2nd respondent-de facto
complainant, she belongs to Erukula community, a scheduled tribe, whereas the
petitioners belong to Kapu community, an upper caste, and therefore 1st
petitioner-A.1 refused to marry her and petitioners 2 and 3 (A.2 and A.3) abused
her in her caste name stating that how a girl of Erukula community can marry a
boy belonging to a forward caste. Basing on the said report, a case in Cr.No.24
of 2010 of Chirala I Town Police Station came to be registered against the
petitioners for the offences punishable under Section 420 of I.P.C. and Sections
3(1)(x) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
4. The Sub Divisional Police Officer, Chirala investigated into the case. In
the course of investigation, he examined ten witnesses and ultimately filed a
final report stating that the allegations leveled against the petitioners are
false. The learned Magistrate applied his judicial mind to the said final
report and took cognizance of the offences against the 1st petitioner-A.1 only
for the offences under Section 420 of I.P.C. and Sections 3(1)(x) and 3(1)(xii)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989. Thereafter, the 2nd respondent-de facto complainant filed a protest
petition before the learned Magistrate. The learned Magistrate examined the de
facto complainant and some of her witnesses, and again, took cognizance of the
offences under Section 420 of I.P.C. and Sections 3(1)(x) and 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
against the petitioners-A.1 to A.3 and issued non-bailable warrants against A.1
to A.3.
5. Initially after taking cognizance of the aforesaid offences against A.1,
the learned Magistrate registered it as P.R.C.No.46 of 2010 by applying his mind
to the final report submitted by the police and committed the case to the Court
of Session. The said case is now pending as Sessions Case No.61 of 2010 on the
file of the VII Additional Sessions Judge-cum-Special Judge for Trial of the
Cases under the S.Cs. and S.Ts. (P.O.A.) Act, 1989 at Ongole. Thus, the learned
Magistrate after committing the case against the 1st petitioner-A.1 to the Court
of Session, again for the second time, took cognizance of the same offences
against A.1 to A.3, and now the said case is pending against A.1 to A.3 as
P.R.C.No.46 of 2010 on the file of the Additional Judicial Magistrate of the
First Class, Chirala, which is now sought to be quashed in the present criminal
petition.
6. Sri Bal Reddy, learned senior counsel, representing Sri Nimmagadda
Satyanarayana, learned counsel appearing for the petitioners-accused, would
submit that when once the Magistrate took cognizance of the offences by applying
his judicial mind and committed the case to the Court of Session basing on the
final report submitted by the police, he cannot again take cognizance of the
offences against the petitioners-A.1 to A.3 basing on the protest petition filed
by the 2nd respondent. According to the learned counsel, taking cognizance of
the aforesaid offences by the learned Magistrate for the second time is bad in
law, and therefore, P.R.C. is liable to be quashed against A.1 to A.3.
Reliance is placed by the learned counsel on the judgment in Hira Lal and others
v. State of Rajasthan and others1, wherein the learned single Judge of Rajasthan
High Court held that the Magistrate after taking cognizance of the offences on
police report and committing the case to the Court of Session, if takes
cognizance of the same offence on a private complaint, it is bad in law.
According to the learned single Judge, once the matter was committed to the
Sessions Judge under Section 209 of Cr.P.C., the Magistrate had become functus
officio as regards his power under Section 190 of Cr.P.C. Learned senior
counsel also relied on a judgment in Hemant P. Vissanji and others v. Mulshankar
Shivram Rawal and another2, wherein the learned single Judge of Bombay High
Court dealing with the same situation held that the policy of the Code is that
the offence can be taken cognizance of once only and not repeatedly upon
discovery of further particulars. It is also held that if it is permissible to
take cognizance of the same offence repeatedly, then it was unnecessary for the
legislature to have put S.319 on the Statute Book as it would be redundant and
the policy of the Legislature appears to be that when cognizance is taken of the
offence, the Court taking cognizance will take cognizance of the offence as such
and not merely the particulars of the persons who are alleged to have committed
the offence. Learned senior counsel further relied on another judgment in
Jamuna Singh and others v. Bhadai Shah3, wherein the Supreme Court held as
follows:-
"The Magistrate had already examined the complainant under S.200. That
examination proceeded on the basis that he had taken cognizance and in the face
of this action it was not possible to say that cognizance had not already been
taken when he made the order to Sub Inspector for instituting a case and report.
Cognizance having already been taken by the Magistrate before he made the order
there was no scope of cognizance being taken afresh of the same offence after
the police officer's report was received. There was thus no escape from the
conclusion that the case was instituted on private person's complainant and not
on the police report submitted later by the Police Sub Inspector.
The order of the Magistrate asking the police to institute a case and to send a
report should properly and reasonably be read as one made under S. 202."
7. In the instant case also, initially the learned Magistrate applied his
judicial mind to the final report submitted by the Sub Divisional Police Officer
referring the case as false. In spite of the fact that the case was referred as
false, the learned Magistrate applying his judicial mind took cognizance of the
aforesaid offences against A.1 only and then committed the case against A.1 to
the Court of Session. The learned Magistrate therefore subsequently basing on
the protest petition filed by the 2nd respondent-de facto complainant, cannot
take cognizance of the offences for the second time against A.1 to A.3 on the
same facts. The Magistrate while acting under Section 200 of Cr.P.C. takes
cognizance of the offences, but not cognizance of the accused. When once he
took cognizance of the entire offences against A.1 only, he cannot again take
cognizance of the offences against A.1 to A.3 basing on the very same facts.
Therefore, taking cognizance of the offence by the learned Magistrate by his
order dated 06.09.2010 against all the accused and issuing non-bailable warrants
against them is bad in law.
8. As such, the order passed by the learned Magistrate taking cognizance of
the aforesaid offences against the petitioners-A.1 to A.3 for the second time,
is liable to be quashed. Consequently, the entire proceedings in P.R.C.No.46 of
2010 on the file of the Additional Judicial Magistrate of the First Class,
Chirala are quashed. However, it is made clear that the quashing of P.R.C.No.46
of 2010 would not be a bar for the trial of the case in Sessions Case No.61 of
2010 on the file of the VII Additional Sessions Judge-cum-Special Judge for
Trial of the Cases under the S.Cs. and S.Ts. (P.O.A.) Act, 1989 at Ongole,
against 1st petitioner-A.1.
9. Accordingly, the Criminal Petition is allowed. As a sequel, the
miscellaneous petitions, if any, shall stand closed.
_________________
R.KANTHA RAO, J
13th September, 2013.
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