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Friday, March 29, 2013

FORGERY = Even where a document is sent for examination by an expert, the opinion is only persuasive in nature and it cannot be treated as final. If the opinion suffers from any lacunae, the concerned party can certainly point out the same. Ultimately, it is for the trial Court to satisfy itself as to whether the plea as to forgery or discrepancy is substantiated.; second opinion of expert on finger print = not only the expert rendered his opinion, but also the he was subjected to elaborate cross-examination. The matter must rest at that. The petitioner wanted the same document to be sent to another expert. It is only when the opinion expressed by the expert is set aside or found fault with, for any specified reasons, that the occasion may arise for repeating the exercise. The facts of the present case do not permit of such an effort. Therefore, civil revision petition is dismissed.


THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY 
CIVIL REVISION PETITION No.58 OF 2013
ORDER:
          The petitioner and respondent No.18 filed O.S.No.10 of 1994 in the Court of Senior Civil Judge, Madanapalle against respondents 1 to 17 herein for the relief of partition and separate possession of the suit schedule properties, which are said to be agricultural lands.  On behalf of the contesting defendants, a plea was raised to the effect that the father of the petitioner executed a will, marked as Ex.B.12 in their favour.  
Suspecting the genuinity of that will, the petitioner filed I.A.No.554 of 2004 under Section 45 of the Evidence Act with a request to send the document for the opinion of an expert. The I.A. was allowed and the expert rendered his opinion, to the effect that the signature and the thumb impression on the disputed document tally with those on the admitted documents.  The expert was also examined as D.W.1 and his opinion was made part of the record as Ex.X.1. 
          The petitioner filed I.A.No.494 of 2011 under Order 26 Rule 10 C.P.C. with a prayer to send the document for the opinion of a Government Finger Print Expert.  The application was opposed by the contesting defendants.  The trial Court dismissed the I.A. through its order, dated 09.10.2012.  Hence, this revision.
          Heard Sri N.Pramod, learned counsel for the petitioner.
          On the face of it, the I.A. filed by the petitioner was untenable, if not frivolous.  
Even where a document is sent for examination by an expert, the opinion is only persuasive in nature and it cannot be treated as final.  
If the opinion suffers from any lacunae, the concerned party can certainly point out the same.  
Ultimately, it is for the trial Court to satisfy itself as to whether the plea as to forgery or discrepancy is substantiated.
          In the instant case, 
not only the expert rendered his opinion, but also the he was subjected to elaborate cross-examination. 
The matter must rest at that.  
The petitioner wanted the same document to be sent to another expert.  It is only when the opinion expressed by the expert is set aside or found fault with, for any specified reasons, that the occasion may arise for repeating the exercise.  
The facts of the present case do not permit of such an effort.
          Therefore, civil revision petition is dismissed.
          The Civil Miscellaneous Petition filed in this Civil Revision Petition shall also stand disposed of. There shall be no order as to costs.
____________________

L.NARASIMHA REDDY, J

Date: 08.02.2013

JSU


THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY 













CIVIL REVISION PETITION No.58 OF 2013



Date: 08.02.2013

JSU


Once the revision is pending, nothing in the D.V.C. can be said to have become final.hence the document petition is not maintainable - The petitioner wanted certain documents pertaining to D.V.C.No.1014 of 2007 to be made part of record in O.P.No.503 of 2007.The subject matter of the D.V.C. is substantially different from the one in an O.P. for divorce. At any rate, it is brought to the notice of this Court that feeling aggrieved by the order passed in D.V.C.No.1014 of 2007, the respondent filed a criminal revision case before this Court. Once the revision is pending, nothing in the D.V.C. can be said to have become final. The trial Court has taken the correct view of the matter and dismissed the I.A.


THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

CIVIL REVISION PETITION No.1049 of  2013

ORDER:


          Petitioner is the wife of the respondent.  Acute differences have arisen between them and several proceedings have ensued.  The respondent filed O.P.No.503 of 2007 in the Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam for divorce against the petitioner.  On her part, the petitioner filed O.P.No.521 of 2007 for maintenance.  Certain other proceedings are also pending between the same parties and all of them are being heard together.
          The petitioner filed I.A.No.246 of 2013 in O.P.No.503 of 2007 under Order 18 Rule 17 C.P.C. with a prayer to recall P.W.1 for the purpose of further cross-examination and for marking certain documents pertaining to D.V.C.No.1014 of 2007 on the file of the Chief Metropolitan Magistrate, Visakhapatnam.  The application was resisted by the respondent.  The trial Court dismissed the I.A., through order, dated 20.02.2012.  Hence this revision.
          Heard Sri N.Srirama Murthy, learned counsel for the petitioner.
          The petitioner wanted certain documents pertaining to D.V.C.No.1014 of 2007 to be made part of record in O.P.No.503 of 2007.The subject matter of the D.V.C. is substantially different from the one in an O.P. for divorce.  At any rate, it is brought to the notice of this Court that feeling aggrieved by the order passed in D.V.C.No.1014 of 2007, the respondent filed a criminal revision case before this Court.  Once the revision is pending, nothing in the D.V.C. can be said to have become final.  The trial Court has taken the correct view of the matter and dismissed the I.A.
          Hence, the civil revision petition is dismissed.  There shall be no order as to costs.

          The miscellaneous petition filed in this revision shall also stand disposed of.

_____________________
                                                                L.NARASIMHA REDDY,J
Dt:15.03.2013
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J.F.C.M has got jurisdiction to release the vehicle/property seized in EXCISE OFFENCES =The petitioner is the owner of the motor cycle bearing No. AP 16 BP 0865. He approached the Special Judicial Magistrate of First Class (Prohibition and Excise Cases), Khammam, for interim custody of the vehicle by moving an application vide Crl.M.P.No.89 of 2013 under Section 457 Cr.P.C. His application came to be dismissed on 11.02.2013 for want of jurisdiction. The issue involved in this Criminal Revision Case is no more res integra in view of the decisions of this Court in Smt. Karri Venkamma v. State of A.P.[1], Dharavath Sreenu v. State of A.P.[2] and A.Tata Rao v. State of A.P[3]. This Court, in the above-referred cases held that the criminal court has jurisdiction under Section 31 of Andhra Pradesh Prohibition Act, 1995, to pass orders for release of vehicles for interim custody.


THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.426 of 2013

 

Date:15th March, 2013



Between:

Itham Yesu S/o.Bullaiah @ Billaiah
….Petitioner
           A n d

The State of A.P., through SHO, Chintakani Police Station, Khammam District, rep. by its Public Prosecutor, High Court of A.P., Hyderabad.
…Respondent
***

































THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.426 of 2013


ORDER:


        This Criminal Revision Case has been taken out under Sections 397 and 401 Cr.P.C. by Itham Yesu seeking release of motor cycle bearing No.AP 16 BP 0865, for interim custody, which has been seized on 28.01.2013 by the Sub-Inspector of Police, Chinthakani Police Station, Khammam District, in Crime No.14 of 2013.

2.     The petitioner is the owner of the motor cycle bearing No. AP 16 BP 0865.  He approached the Special Judicial Magistrate of First Class (Prohibition and Excise Cases), Khammam, for interim custody of the vehicle by moving an application vide Crl.M.P.No.89 of 2013 under Section 457 Cr.P.C.   His application came to be dismissed on 11.02.2013 for want of jurisdiction.  Hence, this Criminal Revision Case.

3.     Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent/State.

4.     The issue involved   in this Criminal Revision Case is no more res integra in view of the decisions of this Court in  Smt. Karri Venkamma v.  State of A.P.[1],  Dharavath Sreenu v.  State of A.P.[2] and A.Tata Rao v. State of A.P[3].  This Court, in the above-referred cases held that the criminal court has jurisdiction under Section 31 of Andhra Pradesh Prohibition Act, 1995, to pass orders for release of vehicles for interim custody.

5.     Indisputably, the petitioner is the owner of the motor cycle bearing No. AP 16 BP 0865.  If the vehicle is kept in the custody of the police, there is every likelihood of its being exposed to natural decay. 

6.     In that view  of the matter, the Criminal Revision Case is allowed with a direction to the Special Judicial Magistrate of First Class (Prohibition and Excise Cases), Khammam, to release the motor cycle bearing No. AP 16 BP 0865, to the petitioner for interim custody, subject to the following  conditions:-
1)     The petitioner shall execute a bond for Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the Special Judicial Magistrate of First Class (Prohibition and Excise Cases), Khammam.
2)     The petitioner shall not alter the features of the vehicle.
3)     The petitioner shall not transfer the vehicle or create encumbrances over it.
4)     The petitioner shall produce the vehicle as and when required either by the trial Court or by the authority under the provisions of the A.P. Prohibition Act.


_____________________

B.SESHASAYANA REDDY, J

Date:15th March, 2013.
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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 















 

 

Criminal Revision Case No.426 of 2013

 





Date:15th March, 2013




[1] Crl. Petition No.8083 of 2008 dated 17.12.2008
[2] Crl. Revision Case No.1818 of 2010, dated 6.10.2010
[3] Criminal Revision Case No.256 of 2010, dated 11.2.2010

Boundary recitals of a document when useful - one Mr.Polinaidu has executed two documents and that in those documents, the petitioners were shown as the owners of neighbouring land. If that is true, the recitals, it will hardly be of any use to the petitioners. It is only when one of the parties to the suit has executed the document and made certain recitals, that other party can reply upon them to prove his case. The document is executed by a person who is not a party to the suit and the recitals therein would hardly be of any relevance to the suit. Further placing reliance upon the said recitals or contents will lead to several complications. The trial Court has taken correct view of the matter and this court is not inclined to interfere with the orders under revision.


HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

CIVIL REVISION PETITION Nos.1050,1066,1086 AND 1087 of 2013


COMMON ORDER

All the four revisions are filed by the petitioners herein.  Hence, they are disposed through a common order.
    
The petitioners filed O.S.No.274 of 2006 in the Court of Principal Junior Civil Judge, Yellamanchili, against the respondents for the relief of Perpetual Injunction in respect of two items of property , aggregate to Ac.05-17 cents of land.  The petitioners are spouses, the 1st respondent is their son.  The 2nd respondent is said to be wife of 1st respondent, respondents 3 and 4 are said to be brothers and respondents 5 and 6 are nieces of the 2nd respondent.  The recording of evidence in the suit was concluded.  At the stage of arguments, the petitioners filed four applications namely I.A.No.2 of 2013 with a prayer to reopen the suit, I.A.No.3 of 2013 with a prayer to recall Pw.1, I.A.No.4 of 2013 for receiving documents and I.A.No.5 of 2013 for issuance of summons to one K.Polinaidu.  The basis was that  Polinaidu executed two documents on 19-11-2012, 05-12-2012 in respect of properties in the neighbourhood, and in those documents, the petitioners were shown as owners of the land in the neighbourhood.  The applications were opposed by the respondents.  The trial Court dismissed the applications through separate orders dated 30-01-2013.  Hence, these four revisions.

Sri A.Subash Chandra Bose, learned counsel for the petitioners submit that the necessity to file the applications, referred to above, has arisen on account of the fact that in the recent past one Mr.Naidu has executed two documents and recitals therein, particularly, the description of the boundaries would throw light upon the question of possession over the suit schedule property.

 The petitioners, on one hand, and the respondents, on the other hand, already adduced evidence to prove their respective cases.  In a suit for perpetual Injunction, the burden squarely rests upon the plaintiff to prove the possession over the property as on the date of filing of the suit.  The petitioners have already adduced evidence in that behalf.

The only basis for filing of the present set of applications is that 
one Mr.Polinaidu has executed two documents and that in those documents, the petitioners were shown as the owners of neighbouring land. 
 If that is true, the recitals, it will hardly be of any use to the petitioners. 
 It is only when one of the parties to the suit has executed the document and made certain recitals, that other party can reply upon them to prove his case.  
The document is executed by a person who is not a party to the suit and the recitals therein would hardly be of any relevance to the suit.  
Further placing reliance upon the said recitals or contents will lead to several complications.  The trial Court has taken correct view of the matter and this court is not inclined to interfere with the orders under revision.
                                        
Hence, these Civil Revision Petitions are accordingly dismissed.  There shall be no order as to costs.
 The miscellaneous petition filed in these revision petitions shall stand disposed of. 

____________________
L. NARASIMHA REDDY, J   

Dt:14-03-2013

nvl/gj

Section 457 Cr.P.C. for release of the property for interim custody. = The petitioner approached the Additional Judicial First Class Magistrate, Sathupalli by moving petition being Crl.M.P.No.279 of 2013 under Section 457 Cr.P.C. for release of the property for interim custody. The learned Additional Judicial First Class Magistrate refused to entertain the petition by order dated 28.02.2013. Hence this Criminal Revision Case.= The petitioner failed to place on record any material to show that he is a businessman authorised to deal in black jaggery. The very accusation against the petitioner is that he secured black jaggery for being used in preparation of I.D liquor. In the absence of any material to show that the petitioner is a businessman authorised to deal in black jaggery, he is not entitled to seek release of the black jaggery for interim custody.


THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.487 of 2013

ORDER:

        This Criminal Revision Case is directed against the return endorsement dated 28.02.2013 of the Additional Judicial First Class Magistrate, at Sathupalli on a petition being Crl.M.P.No.279 of 2013 filed under Section 457 Cr.P.C. seeking return of 2600 kgs of black jaggery worth Rs.20,000/- seized in Crime No.22 of 2013 of Aswaraopet  P.S., Khammam District registered for the offence under Section 34(e) of  A.P.Excise Act, 1968 for interim custody.

2.     The Station House Officer,  Aswaraopet  P.S seized 2600 kgs of black jaggery  during investigation in Crime No.22 of 2013 registered for the offence under Section 34(e) of A.P.Excise Act on 7.2.2013 under the cover of  a panchanama.  The petitioner approached the Additional Judicial First Class Magistrate, Sathupalli by moving petition being Crl.M.P.No.279 of 2013 under Section 457 Cr.P.C. for release of the property   for interim custody.   The learned Additional Judicial First Class Magistrate refused to entertain the petition by order dated 28.02.2013.  Hence this Criminal Revision Case.

3.     Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent-State.
4.     It is contended by the learned counsel appearing for the petitioner that the petitioner is a businessman and if the property is not released to the petitioner for interim custody, there is every likelihood of it’s utility being diminished.  

5.     The petitioner failed to place on record any material to show that he is a businessman authorised to deal in black jaggery.  The very accusation against the petitioner is that he secured black jaggery   for being used in preparation of I.D liquor.   In the absence of any material to show that the petitioner is a businessman authorised to deal in black jaggery,  he is not entitled to seek  release of  the black jaggery for interim custody.

6.     Accordingly, the Criminal Revision Case is dismissed at the stage of admission.
_____________________
B.SESHASAYANA REDDY, J
Dt.18-03-2013
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Police deleted an accused believing ALIBI - but Magistrate took cognizance not based on protest complaint, but based on 161 statements whether it is correct = It is well settled that when the police submitted a final report of investigation of a case, the Magistrate may take cognizance or direct further investigation. This legal position has been time and again clarified by the Supreme Court in several pronouncements, viz., in the matter of Bains v. State[3], wherein it has been held as hereunder:- “1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Sec.190(1)(a) direct a police investigation under Section 156(3) ante; 2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps: “i. If he agrees with the police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceedings and dismiss the complaint. ii. He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed in the matter of Abhinandan Jha [AIR 1968 SC 117] which was relied upon in the matter of Ram Naresh Prasad [(2009)11 SCC 299]. 8. Coming to the facts of the case on hand, the Sub Divisional Police Officer, accepted the alibi pleaded by the petitioner and deleted the name of the petitioner from the array of the accused after obtaining necessary permission from the Superintendent of Police, Kurnool. The learned Magistrate, on going through the charge sheet and the documents enclosed to it, more precisely, the 161 Cr.P.C statements of PWs. 1 to 4, proceeded to take cognizance of the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3. Had the learned Magistrate treated the objections placed on record by the de facto complainant as complaint petition, necessarily the procedure contemplated under Section 200 Cr.P.C is required to be followed. The learned Magistrate has not treated the objections placed on record by the de factocomplainant as complaint petition. The main basis for taking cognizance of the offences is based on material gathered by the police during the course of investigation, more precisely the statements of witnesses recorded during the course of investigation. Much emphasis has been laid by the learned Magistrate on the 161 Cr.P.C statements of LWs.1 to 4. It is not the case of the petitioner that his name has not been spoken out by L.Ws 1 to 4. Therefore, the learned Magistrate is justified in taking cognizance of the case against the petitioner along with other accused. There is no flaw in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 of Cr.P.C. It is required to be noted that the petitioner was very much accessible to the Investigating Officer as he pleaded alibi and placed on record material to substantiate his plea. It is not the case of the prosecution that the petitioner avoided the investigating officer during the investigation of the case. In these circumstances, the learned Magistrate ought not to have issued N.B.W straightaway. Therefore, I am inclined to modify the warrant issued against the petitioner from Non Bailable to Bailable.


           *THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

+Criminal Revision Case No.401 of 2013


% 05-03-2013

# Injeti Venkata Rami Reddy

… Petitioner

                     Vs.

$  State of A.P., rep. by
    it’s Public Prosecutor, High Court of A.P.
… Respondent


! Counsel for the petitioner :   Sri T.Pradyumna Kumar Reddy
                                           

 Counsel for 2nd Respondent:  Additional Public Prosecutor


< Gist:



> Head Note:




 ? Cases referred:

(2007) 12 Supreme Court Cases 1
2012 (1) ALT (Crl.) 506 (SC)
AIR 1980 SC 1883










THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.401 of 2013
ORDER:

        This Criminal Revision Case is directed against the order dated 15-02-2013 passed in P.R.C.No.7 of 2013 whereby and whereunder, the learned Magistrate took cognizance of the offences punishable under Sections 147, 148, 452, 302 and 307 read with 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3 and whose name has been deleted in the array of the accused while filing charge sheet in Crime No.21 of 2012 of Allagadda Town P.S.

2.     Facts, in brief, are:-
        Injeti Venkata Raghava Reddy @ Raghava Reddy and  Injeti  Krishna Reddy  were staunch followers of  Bhuma Nagi Reddy, Ex. Member of Parliament of Nandyal Parliamentary constituency.   
Both of them were trying to establish supremacy over the other in the village-Chintakunta.  
On 24-02-2012 at about 9.30 P.M., Injeti Krishna Reddy (hereinafter referred to as `D2’) was chitchatting with his wife-Govindamma  (hereinafter referred to as `D1’), his son-Injeti Mallikharjuna Reddy (hereinafter referred to as `D4’) and Pakir Nadipi Mabu @ Dubba (hereinafter referred to as `D3’) in his house.  

A-1 to A-19 formed into an unlawful assembly, armed with deadly weapons with the common object of doing away the life of D2-Krishna Reddy and his associates. 
They trespassed into the house of D2 by pushing main gate and attacked D1 to D4 and Lw-8-Sathugari Rama Subba Reddy. D1 to D4 succumbed to the injuries at the scene of offence.  
More precisely; A-2, A-9 and   A-6 dealt blows  on D1-Govindamma; A-3, A-4, A-8, A-10, A-14 and A-15 dealt blows  with deadly weapons  on D2-Krishna Reddy; A-1, A-6,   A-16 dealt blows with deadly weapons on D3-Pakkir Nadipi  Mabu @ Dubba; A-4, A-7, A-10, A-11, A-12, A-13, A-17, A-18 dealt blows  on D4-Mallikharjuna Reddy, and A-2, A-3 and A-19 dealt blows with deadly weapons  on Lw-8-Sathugari Rama Subba Reddy and caused  bleeding injuries  to him.   
Apart from the injured, LW-1-Shaik Chand Basha, LW-2-Ketireddy Jaya Rami Reddy, LW-3-Annem Sunith, LW-4-Khammam Naga Sulochana, LW-5-Suraboina Sujatha, LW-6-Boya Kondaiah and LW-7-Madiga Bala Hussaini witnessed the incident.  LW-1-Shaik Chand Basha presented a report on 25-02-2012 at about 0015 hours before the Station House Officer, Allagadda P.S., who registered a case in Crime No.21 of 2012 for the offences under Sections 147, 148, 452, 302, 307 read with 149 IPC and issued F.I.R. During the course of investigation, A-3-Injeti Venkatrami Reddy, A-5-Kristipadu Pedda Dasthagiri Reddy @ Dasthagiri Reddy, A-7-Kurduru Venkatrami Reddy pleaded alibi.  
The Sub Divisional Police Officer, Dhone examined the alibi pleaded by   A-3, A-5 and A-7 and accepted the alibi pleaded by A-3-Injeti Venkatrami Reddy while rejecting the alibi pleaded by A-5-Kristipadu Pedda Dasthagiri Reddy @ Dasthagiri Reddy and A-7-Kurduru Venkatrami Reddy.  
The Superintendent of Police, Kurnool issued orders to delete the name of A-3-Injeti Venkatrami Reddy from the array of the accused.  For better appreciation, I may refer the text of the proceedings issued by the Superintendent of Police, Kurnool in Rc.No.C1/11520/2012, Dated 8-8-2012 and it is thus:-
          As per the orders of Dy. Inspr.Genl. of Police, Kurnool Range, Kurnool in the reference  1st cited,  the Sub-Divisional Police Officer, Dhone .... took up investigation in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S.
          The S.D.P.O Dhone in his enquiry revealed that according to the versions of witnesses examined in the enquiry  and documentary evidence  collected by him the Injeti Venkatrami  Reddy (A-3) in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S …. was not at all present at P.Chintakunta village on 24-02-2012 at 10.45 PM, he was present at Chinnakomerla village of Mylavaram Mandal, YSR Kadapa Dist. to attend the marriage of Chinatryapalli Lakshmi who is the daughter of his cousin and he was not present  at scene of offence on 24-02-2012 at P.Chinthakunta village.  The witnesses who are very much known to A-3 categorically stated that A-3 was very much present  Chinnakomerla village of Mylavaram Mandal, YSR Kadapa District.
          In the above circumstances explained by the Sub-Divl. Police Officer, Dhone permission is accorded to delete the name of accused (A-3) Injeti Venkatrami Reddy aged 57 years s/o Injeti Venkata Subba Reddy of P.Chinthakunta village, Allagadda Mandal from the list of Accused in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S”.

3.     Pursuant to the proceedings issued by the Superintendent of Police, Kurnool; the Sub-Divisional Police Officer, Dhone, deleted A-3- Injeti Venkatrami Reddy from the array of the accused and filed charge sheet in Crime No.21 of 2012 of Allagadda Town P.S. in the Court of the Judicial First Class Magistrate, Allagadda against A1, A2 and A-4 to A-19. 
The learned Magistrate issued notice to the de facto complainant with regard to deletion of A-3 Injeti Venkatrami Reddy from the array of the accused. 
The de facto complainant appeared before the Judicial First Class Magistrate, Allagadda and placed on record his objections to the charge sheet filed by the Sub Divisional Police Officer with regard to deletion of A-3- Injeti Venkatrami Reddy from the array of the accused.   
The learned Magistrate considered the charge sheet and the material documents enclosed to it as well as the objections placed on record by the de facto complainant and proceeded to take cognizance of the case against A-1 to A-19 including the petitioner whose name has been deleted from the array of the accused in the charge sheet, for the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC, by order dated 15-02-2013. 
 For completion of narration of facts, the relevant portion of the order dated 15-02-2013 needs to be noted and it is thus:-
“In the circumstances of the case and in the light of the contents of the FIR, the statements of LWS.1 to 4 given to the Investigating Officer under Section 161(3) Cr.P.C prima facie shows there is sufficient material to proceed against the accused No.3 also.
On considering the totality of the facts and circumstances of the case, cognizance of the offence U/s.147,148,452,302,307 r/w 149 of I.P.C  is taken against  the accused Nos.1 to 19 whose names are arrayed  in the charge sheet including the accused No.3 Injeti Venkata Rami Reddy  whose name deleted.  Issue summons to accused No.11 as he is on bail.  The accused No.1, 2, 4 to 10, 12 to 19 are in Judicial Custody.  Hence, the case posted to 18-2-2013.  Issue non bailable warrant against  accused No.3.Injeti Venkata Rami Reddy. Call on 18-2-2013”.

The said order is assailed in this Criminal Revision Case by A-3-Injeti Venkata Rami Reddy.

4.     Heard Sri T.Pradyumna Kumar Reddy, learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the 2nd respondent-State.

5.     It is contended by the learned counsel appearing for the petitioner that taking cognizance of the case against the petitioner ignoring the report submitted by the Sub Divisional Police Officer on the alibi pleaded by the petitioner/A-3 cannot be sustained. He would further contend that had the learned Magistrate referred the report submitted by the S.D.P.O., on the plea of alibi taken by the petitioner/A-3, he would not have taken cognizance of the case against the petitioner/A-3. A contention has been advanced by the learned counsel that the objections placed on record by the de facto complainant amount to a complaint, in which case, the Magistrate has to follow the procedure contemplated under Section 200 Cr.P.C.  His next contention is that the learned Magistrate ought not to have issued N.B.W straightaway without exhausting the course of summon or bailable warrant. In a way, the contention of the learned counsel is that the power of issuing warrant being discretionary must be exercised judiciously with extreme care and caution.  The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.   In support of his contentions, reliance has been placed on the judgment of Supreme Court in Inder Mohan Goswami v. State of Uttaranchal[1] and Vasanti Duvey v. State of Madhya Pradesh[2].  In Inder Mohan Goswami’s case            (1 supra), the Supreme Court issued certain guidelines as to when N.B.W should be issued.  Paragraphs (53) and (54) of the cited judgment needs to be noted and it is thus:-
“53.      Non bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired  result.  This could be when:
  • it is reasonable  to believe  that the person will not voluntarily appear in court; or
  • the police  authorities are unable to find the person  to serve him with a summon; or
  • it is considered  that the person  could harm someone  if not placed  into custody immediately.
54.     As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred.   The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.  The court must very carefully examine whether   the criminal complaint or FIR has not been filed with an oblique motive”.

6.     In Vasanti Duvey’s case (2 supra), the Supreme Court held that on closure report from police pursuant to reference     u/s 156(3) Cr.P.C., the Magistrate cannot direct the police to file charge sheet.

7.     It is well settled that when the police submitted a final report of investigation of a case, the Magistrate may take cognizance or direct further investigation.  
This legal position has been time and again clarified by the Supreme Court in several pronouncements, viz., in the matter of Bains v. State[3], wherein it has been held as hereunder:-
“1.     When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Sec.190(1)(a) direct a police investigation under Section 156(3) ante;
2.       Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:
“i.      If he agrees with the police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceedings and dismiss the complaint.
ii.      He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200.
iii.    Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203.  However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant,  the magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed  in the matter of Abhinandan Jha [AIR 1968 SC 117] which was relied upon in the matter of  Ram Naresh Prasad [(2009)11 SCC 299].

8.     Coming to the facts of the case on hand, the Sub Divisional Police Officer, accepted the alibi pleaded by the petitioner and deleted the name of the petitioner from the array of the accused after obtaining necessary permission from the Superintendent of Police, Kurnool.  
The learned Magistrate, on going through the charge sheet and the documents enclosed to it, more precisely,  the 161 Cr.P.C statements of PWs. 1 to 4, proceeded to take cognizance of the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3. 
 Had the learned Magistrate treated the objections placed on record by the de facto complainant as complaint petition, necessarily the procedure contemplated under Section 200 Cr.P.C is required to be followed.  
The learned Magistrate has not treated the objections placed on record by the de factocomplainant as complaint petition.  
The main basis for taking cognizance of the offences is based on material gathered by the police during the course of investigation, more precisely the statements of witnesses recorded during the course of investigation. 
Much emphasis has been laid by the learned Magistrate on the 161 Cr.P.C statements of LWs.1 to 4.  
It is not the case of the petitioner that his name has not been spoken out by L.Ws 1 to 4. 
Therefore, the learned Magistrate is justified in taking cognizance of the case against the petitioner along with other accused.  
There is no flaw in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 of Cr.P.C.  
It is required to be noted that the petitioner was very much accessible to the Investigating Officer as he pleaded alibi and placed on record material to substantiate his plea.  
It is not the case of the prosecution that the petitioner avoided the investigating officer during the investigation of the case. 
In these circumstances, the learned Magistrate ought not to have issued N.B.W straightaway.  
Therefore, I am inclined to modify the warrant issued against the petitioner from Non Bailable to Bailable.

9.     Subject to the above observation, this Criminal Revision Case is dismissed at the stage of admission.
_____________________
B.SESHASAYANA REDDY, J
Dt.05-03-2013
RAR






[1] (2007) 12 Supreme Court Cases 1
[2] 2012(1) ALT (Crl.) 506 (SC)
[3] AIR 1980 SC 1883