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Saturday, August 27, 2016

When the police were accused - No investigation be placed in their hands for investigation against the complainant - transfer the same to other than local police is justifiable = Similarly, in a recent judgment in Rubabbuddin Sheikh Vs. State of Gujarat16 the Supreme Court directed investigation to be entrusted to CBI as the Gujarat State Police personnel were some of the accused in the alleged fake encounter of Sohrabuddin. In Koganti Lakshmi Vs. State Government of Andhra Pradesh17, on a review of case law, this Court directed entrustment of investigation of a criminal case to the CBCID to ensure that fair and impartial investigation is held into the serious complaint of burglary/robbery allegedly committed in a Jewellary shop at Vijayawada. A perusal of the said report shows that respondent No.3 has failed to address himself to the core issue raised by the petitioners, viz., whether there is any reason for the petitioners to apprehend bias on the part of respondent No.4. Instead, respondent No.3 has solely relied upon the reports of the Sub-Divisional Police Officer, Nandyal and respondent No.4. None of these officers have gone into the grievance of the petitioners and tried to redress the same. On a careful consideration of the facts of this case, it cannot be held that the apprehensions expressed by the petitioners are without any basis. I am, therefore, of the opinion that interests of justice would be served if the investigation is entrusted to an agency, other than the local Police, as serious allegations have been made against them. It is, however, made clear that this order shall not be understood as this Court expressing its conclusive opinion either on the professed innocence of the petitioners or on the allegations of the petitioners against respondent No.4 or the other local Police officials. On the premises as above, the Writ Petition is allowed. Respondent No.3 is directed to transfer Crime No.162 of 2008 on the file of respondent No.5-Police Station to C.B.C.I.D. for further investigation.


THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY          
Writ Petition No.3998 of 2009

21-07-2010

Shaik Abdulla Shareef and others.

The Government of Andhra Pradesh, represented by its Principal Secretary,
Hyderabad, and others.

Counsel for the Petitioners: Mr.P. Nagendra Reddy

Counsel for Respondents: AGP for Home for R.1 to R.5.
                                None for R.6.

:ORDER:

        This writ petition is filed for a Mandamus to declare the action of the
respondents in not transferring the investigation in Crime No.162 of 2008 on the
file of respondent No.5 Police Station to C.B.C.I.D. as illegal and arbitrary.
The petitioners sought for a direction to respondent Nos.1 and 2 to transfer the
investigation in the said Crime to C.B.C.I.D.

        I have heard Sri P. Nagendra Reddy, learned counsel for the petitioners,
and the learned Assistant Government Pleader for Home for respondent Nos.1 to 5.
No one appeared for respondent No.6 at the hearing.

        The petitioners are residents of Nandyal town.  There were civil disputes
between the petitioners and their neighbour-Dr.S.Intiyaj Ahmed.   According to
the petitioners, the Sub-Inspectors of I Town Police Station, Nandyal, Bandi
Atmakur Police Station and Head Constable of I Town Police Station, Nandyal,
along with two constables, came to their house in the night of 11.02.2007 at
around 2.00 a.m., forcibly took away petitioner No.1 to D.S.P. Bungalow at
Nandyal, severely beat and implicated him in a case registered on the purported
report lodged by the said Dr.S.Intiyaj Ahmed.  On the alleged illegal detention
and torture, petitioner No.1 filed a private complaint against the said
Dr.Intiaj Ahmed and Police Officers.  After recording the statements of
petitioner No.1 and five other witnesses, the learned Magistrate has taken
cognizance of the case, for the offences under Sections 341, 326, 324, 329, 120-
B read with Section 149 I.P.C. against the said persons as PRC No.130 of 2007
and the same is pending.   The petitioners specifically pleaded that the present
D.S.P., Dhone-respondent No.4, who worked as Sub-Inspector and Circle Inspector
in Nandyal town for about ten years, was well acquainted with Dr.S.Intiyaj
Ahmed, who is A.1 in the above PRC; that when the petitioners did not agree for
a compromise in the said PRC., all the accused approached respondent No.4; and
that, on his directions, the Police Officers selected one person, by name,
Yerukula Koneti Nageswara Rao-respondent No.6 and got a private complaint filed
before the Judicial Magistrate of First Class, Banaganapalle, with the
allegations that respondent No.6 has obtained hand loan from the petitioners on
17.08.2008, when the petitioners allegedly visited the house of respondent No.6
and demanded the said amount, he was unable to pay the same, and, hence, the
petitioners allegedly abused respondent No.6 by caste name by dragging him out
of his house.  The Judicial Magistrate of First Class, Banaganapalle, before
whom the private complaint was filed by respondent No.6, has referred the said
complaint to the Banaganapalle Police Station, within the jurisdiction of Dhone
Sub-Division.  The Banaganapalle Police, under the alleged directions of
respondent No.4, registered Crime No.162 of 2008 for the offences under Section
3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.  The petitioners pleaded that they had no acquaintance
whatsoever with respondent No.6, who is a resident of Banaganapalle, and alleged
that registration of Crime No.162 of 2008 is the handiwork of the accused in PRC
No.130 of 2007 in collaboration with respondent No.4. The petitioners,
therefore, apprehended that investigation by respondent No.4 would cause harm to
their interests as the said respondent is biased towards the accused in the said
PRC.

        Respondent No.4 has filed a counter-affidavit, wherein he has stated that
when the investigation in Crime No.162 of 2008 was under progress, the
petitioners have filed Criminal Petition No.5885 of 2008 seeking quashing of the
F.I.R. in the said Crime and obtained interim order of stay; that in pursuance
of the said stay order, investigation was stopped; and that, subsequently, this
Court, by order dated 17.02.2009, dismissed the said criminal petition. It is
further stated that the petitioners filed the present Writ Petition in order to
prevent respondent No.4 from filing appropriate report/charge sheet in the said
Crime. Respondent No.4 denied the allegation of the petitioners that as per his
directions, the Police Officers selected respondent No.6 and got the private
complaint filed as a counter blast to PRC No.130 of 2007.
        At the hearing, Sri P.Nagendra Reddy, learned counsel for the petitioners,
contended that the criminal case against the petitioners was engineered by the
local Police Officers, who are accused in PRC No.130 of 2007; and that
respondent No.4 - who had close connections with the petitioners' adversary,
i.e., Dr.S.Intiaj Ahmed and also with the local Police Officers, having worked
in Nandyal for nearly 10 years - will not conduct a fair investigation into the
said Crime. He further submitted that the fact that the Superintendent of
Police, Kurnool- respondent No.3 and the higher Police officials have not
responded to the petitioners' request for changing respondent No.4 as
investigation officer also establishes that the entire local Police have failed
to display an unbiased and neutral approach in dealing with the petitioners'
legitimate grievance, and that, therefore, his clients will suffer serious
injury if respondent No.4 or any other local Police officer is allowed to
investigate Crime No.162 of 2008 and file appropriate report before the Special
Court.
        Seriously opposing the contentions of the learned counsel for the
petitioners, Mrs.Rachana Waddepalli, learned Assistant Government Pleader for
Home, submitted that the petitioners failed to make out any nexus between
respondent No.4 and the complaint given by respondent No.6. She has further
contended that in pursuance of the representation made by the petitioners,
respondent No.2 called for a report from respondent No.3 and that in his report
respondent No.3 has not recommended for transfer of investigation to CBCID. At
the hearing, she has placed a copy of report, dated 20-10-2009, of respondent
No.3, submitted to respondent No.2, before the Court and submitted that it is
not a fit case for entrustment of investigation to any agency other than
respondent No.4.
        Though respondent No.6 has filed a counter-affidavit and a vacate stay
application, he is not represented by his counsel at the time of hearing.
        I have carefully considered the submissions of the learned counsel for the
parties and perused the record.
        The case of the petitioners is founded on the allegation that in view of
his close acquaintance with Dr.S.Intiaj Ahmed and his working for nearly 10
years in Nandyal town, respondent No.4 has been helping the petitioners'
adversaries, viz., Dr.S.Intiaz Ahmed and other accused in PRC No.130 of 2007 by
manipulating the complaint in the name of respondent No.6. The petitioners have
specifically alleged that being a resident of Banaganapally, respondent No.6 has
no acquaintance whatsoever with them; that they are not in the habit of lending
money; and that, after registration of Crime No.162 of 2008, the Police officers
called petitioner No.1 to Panchayat, through elders, and asked him to compromise
in the said PRC filed against the Police officers, and that, otherwise,
petitioner No.1 will be kept in jail at least for ten days in connection with
the pending criminal case against him. In his counter-affidavit, respondent No.4
has not denied the allegations that he has close acquaintance with Dr.S.Intiaj
Ahmed and that he has worked in Nandyal for about ten years.
Bias reflects mental state of a person and by its very nature, ordinarily, it is
not possible for any person to prove the same by adducing direct evidence. It is
only through circumstances that such a plea can be established.
        The Courts in England have applied two tests for determining bias in cases
other than those concerned with pecuniary interest: "real likelihood of bias"
and "reasonable suspicion of bias".
        P.P.Craig in his Administrative Law (Third Edition) traced the Law from
the 19th Century and noted that while in the 19th Century the former test viz.,
real likelihood of bias held sway, Lord Hewart C.J., in R. v. Sussex Justices,
ex p. McCarthy1 held that a reasonable suspicion of bias was sufficient to quash
the determination. The Author further said that later cases witnessed
"competitive invocation" of the two tests and the tide appeared to be shifting
back to the higher test viz., "real likelihood of bias". The learned Author
quoted "the judgment in R. v. Camborne JJ., ex p. Pearce2 and R. v. Barnsley
Licensing JJ., ex p. Barnsley and District Licensed Victuallers' Association3 as
disapproving of Lord Hewart C.J's view. However, Lord Denning M.R. in
Metropolitan Properties (F.G.C) Ltd., v. Lannon4 agreed with the view of Lord
Hewart's reasonable suspicion test.
        The English Case Law further delved into the one other test in judging
bias as to bias from whose stand point and the question of its degree. In the
case of former, four categories of persons are considered, viz., the mind of the
justice (or other challenged individual); the reasonable person, the individual
affected; or ex post facto by the reviewing court. After noticing certain
conflicting views, the learned Author has noted that the Law on this issue is
now being clarified by the House of Lords in R. v. Gough5, wherein it was held
that the same test should be applied in all cases of apparent bias, whether
concerned with justices, members of inferior tribunals, jurors and arbitrators.
Lord Goff, who delivered the leading judgment,  further held that it is from the
perspective of the Court that the bias should be viewed rather than formulating
the test in terms of reasonable man.
        Peter Leyland & Terry Woods in their Administrative Law (4th Edition),
after exhaustively discussing on the topic with reference to the case law,
opined that the Gough test laid down in R. v. Gough (5 supra) formulated by the
House of Lords should be uniformly applied in public law to include all bodies
irrespective of whether they have a judicial or quasi judicial function, and
persons with a direct pecuniary or propriety interest will be disqualified from
acting. The Author further opined that "since the 'Gough test' was formulated in
the early 1990s, there have been a number of further developments in which the
English Courts have taken account of the ECHR Jurisprudence and the test applied
in Scotland and much of the Commonwealth, i.e., the 'reasonable apprehension'
test, one which is more in line with Article 6 of the Convention".
        H.W.R.Wade & C.F.Forsyth in their book Administrative Law (8th Edition),
while dealing with this subject in extenso, referred to the judgment in R v.
Handley6, wherein it was held that among other obvious cases of prejudice are
personal friendship or hostility and family or commercial relationship.
        De Smith - in his Judicial Review of Administrative Action (1980) -
explains: "Reasonable suspicion test looks mainly to outward appearances; "real
likelihood" test focuses on the court's own evaluation of the probabilities.
This is because of the maxim that justice is not only to be done but seen to be
done. It may be that in most cases, the result may be the same whichever
formulation is applied, but at present the "reasonable suspicion" test appears
to be in favour of the courts, and, in essence, the 'suspicion' test seems to be
somewhat broader than the "real likelihood" test. The position, therefore, is
that proof of actual bias on the part of the adjudicator is not necessary. What
is necessary is that, in the opinion of reasonable men, there is a real
likelihood of bias in the circumstance of the case. The reason for not insisting
on actual proof of bias is that it is extremely difficult to prove, on a balance
of probabilities, that a person required to act in an adjudicative capacity was
in fact biased. Bias is an attitude of mind leading to a predisposition towards
the issue. Because of this circumstance, the law looks "to suspicion" rather to
the 'likelihood' of bias arising from the factual situation in which the
particular adjudicator is placed".
        The Law in India is not at much variance with English Law. In A.K.Kraipak
V. Union of India7 the "reasonable likelihood" test was applied by the Apex
Court. In the case before the Supreme Court, an acting Chief Conservator of
Forest was himself a candidate for promotion and being an ex officio member of
the Selection Committee he was himself a member of the selection committee and
was also selected for the All India Service. Though he did not participate in
the deliberations of the Committee, when his name was considered, the Court
observed:
"The real question is not whether he was biased. It is difficult to prove the
state of mind of a person. Therefore, what we have to see is whether there is
reasonable ground for believing that he was likely to have been biased.  ... a
mere suspicion of bias is not sufficient. There must be a reasonable likelihood
of bias" (Emphasis added).

        In Ashok Kumar Yadav V. State of Haryana8,  while dealing with a case
where a member of the Selection Committee before which his close relative was
interviewed as a candidate, the Supreme Court, while applying the test of
"reasonable likelihood" of bias, held as under:
"If a selection committee is constituted for the purpose of selecting candidates
on merits and one of the members of the Selection Committee is closely related
to a candidate appearing for the selection, it would not be enough for such
member merely to withdraw from participation in the interview of the candidate
related to him but he must withdraw altogether from the entire selection process
and ask the authorities to nominate another person in his place on the selection
committee, because otherwise all the selections made would be vitiated on
account of reasonable likelihood of bias affecting the process of selection".

        In R.L.Sharma V. Managing Committee9, the Supreme Court observed:  
"The test of bias is whether a reasonable intelligent man, fully apprised of all
the circumstances, would feel a serious apprehension of bias".

In the context of fair trial, while formulating the concept of 'triangulation'
of interests of the accused, victim and society, the Supreme Court in Zahira
Habibullah Sheikh Vs. State of Gujarat10, emphasized the need for the fair trial
and balancing of competing interests of the trio. The Supreme Court held that
the principle of a fair trial has emerged in the process of evaluation of
jurisprudence as part of the fundamental rights guaranteed under Articles 21 and
14 of the Constitution of India. This concept is reiterated in Zahira Habibullah
Sheikh Vs. State of Gujarat11.
In Police Commissioner, Delhi Vs. Registrar, Delhi High Court12, the Supreme
Court held that assurance of a fair trial is the first imperative of the
dispensation of justice as Article 21 of the Constitution ensures and guarantees
the precious right of life and liberty of a person deprivable only on following
the procedure established by law in a fair trial.
In my opinion, fair investigation is as much a part of constitutional scheme as
fair trial, for, while a guilty cannot be allowed to escape punishment, an
innocent cannot be punished. Article 21 of the Constitution of India guarantees
every person right to life and personal liberty subject to the exception that he
can be deprived of the same only through the procedure established by law. The
provisions of the Code of Criminal Procedure, 1973 lay down the procedure for
investigation and it is axiomatic that such procedure shall be reasonable and
fair. A person with a biased mind is not expected to conduct fair investigation
and unfair investigation may eventually lead to conviction of the accused, which
would be in violation of Article 21 of the Constitution of India. Therefore, to
protect the guaranteed fundamental right of a person of life and personal
liberty, it is most essential that the investigation officer should be free from
bias.
I have carefully weighed the allegations of bias attributed to respondent No.4
and the local police in the light of the legal position as discussed above. In
judging this aspect, order dated 7-12-2007 passed by the Judicial I Class
Magistrate, Nandyal, assumes great relevance. The said order was passed on the
private complaint given by petitioner No.1 against Dr.S.Intiaj Ahmed and five
Police personnel. The gist of his complaint was referred to earlier in this
order. After examining six witnesses, including the petitioners herein, the
learned Magistrate has given the following finding:
"On perusing the complaint and the oral evidence of PWs.1 to 6 and the
documentary evidence of Exs.P.1 to P.17 it is clear that the complainant is
having some civil disputes with A.1 and A.1 is very influenced person in Nandyal
town and A.1 influenced A.2 to A.6 to assist the complainant. As per the
averments of the complaint and the oral evidence of PWs.1 to 6 it is clear that
A.2 to A.6 beat the complainant indiscriminately at the instigation of A.1 in
order to do some favour to the A.1. Therefore, this is a fit case to proceed
against the accused for the following offences punishable under Sections 341,
326, 324, 329, 120-B r/w.149 of Indian Penal Code.

Hence, this complaint is taken on file as PRC No.130/2007 for the offences
punishable under Sections 341, 326, 324, 329, 120-B r/w.149 of Indian Penal
Code. Issue summons to the accused on payment of process. The summons entrusted    
to the SHO., II Town Police Station with direction to serve the summons on A.1
to A.6 and produced them before this Court on 2-1-2008".

In my considered view, this order of the criminal Court, by which cognizance of
petitioners' complaint was taken as PRC No.130 of 2007 against Dr.S.Intiaj Ahmed
and the Police officers is a strong circumstance for the petitioners to
apprehend that the said Dr.S.Intiaj Ahmed (A.1) and the local Police, some of
whom are accused, have developed a serious grudge against them. The further fact
that respondent No.4 has not denied his acquaintance with Dr.S.Intiaj Ahmed, the
prime accused in the said PRC., also gives rise to reasonable apprehension in
the petitioners' mind that respondent No.4 was behind the complaint given by
respondent No.6. Irrespective of whether these apprehensions are true or not, a
person, who is facing accusation of commission of an offence, is entitled to
demand a fair investigation, which is a sine qua non for proper administration
of criminal justice system.
As noted above, the uncontroverted facts, which establish a nexus between
respondent No.4 and Dr.S.Intiaj Ahmed and the local Police, having regard to his
past service at Nandyal, constitute reasonable basis for the petitioners'
apprehension that there is a likelihood of bias on the part of respondent No.4
and other local Police and that they may act prejudicial to the petitioners'
interests while investigating Crime No.162 of 2008 registered against them.
        Ordinarily, the Constitutional Courts are slow in entertaining Writ
Petitions of this nature, but in appropriate cases they exercise their
extraordinary jurisdiction to redress the rightful grievances of the affected
parties.
        In Babubhai Jamnadas Patel vs. State of Gujarat and others13 the Supreme
Court held:
        "The Courts, and in particular the High Courts and the Supreme Court, are
the sentinels of justice and have been vested with extraordinary powers of
judicial review and supervision to ensure that the rights of the citizens are
duly protected.  The Courts have to maintain a constant vigil against the
inaction of the authorities in discharging their duties and obligations in the
interest of the citizens for whom they exist.  This Court, as also the High
Courts, have had to issue appropriate writs and directions from time to time to
ensure that the authorities performed at least such duties as they were required
to perform under the various statutes and orders passed by the administration."

        Existence of power of the superior Courts to order for investigation by an
independent agency is recognized in a slew of authorities of the Apex Court. In
Mohammed Anis Vs. Union of India14, a Police Officer of the cadre of Inspector
General was appointed as investigation officer in a case involving death of ten
persons in encounters between the Punjab Militants and the local Police. In a
Public Interest Litigation (for short "the PIL"), the Supreme Court directed
entrustment of investigation to Central Bureau of Investigation (for short "the
CBI"). A Police Inspector approached the Supreme Court in the name of PIL with
the plea that entrustment of investigation to CBI is destructive of the
exclusive power of the State of Uttar Pradesh and is in flagrant disregard of
the mandatory provisions of the Code of Criminal Procedure, 1973. While
rejecting the said petition, the Apex Court held that as the local Police
officers were involved in the alleged killings and the allegations were mainly
directed against them, doubts were expressed regarding the fairness of the
investigation by an officer of the U.P. cadre, and entrusted the investigation
to the CBI, without expressing any opinion on the allegations. It has felt that
no matter how faithfully and honestly the local police may carry out the
investigation, the same will lack credibility as the allegations were directed
against them. While referring to its power conferred by Article 142 (1) of the
Constitution of India, the Supreme Court, however, held that the power must be
exercised sparingly for furthering the ends of justice.
        In Ramesh Kumar Vs. State15 a report was lodged against certain Police
personnel by a victim. As FIR was not registered, he has approached the Supreme
Court, which, while finding fault with non-registration of the case, directed
registration of the case and entrustment of investigation to CBI as the
allegations were made against the Police.
        Similarly, in a recent judgment in Rubabbuddin Sheikh Vs. State of
Gujarat16 the Supreme Court directed investigation to be entrusted to CBI as the
Gujarat State Police personnel were some of the accused in the alleged fake
encounter of Sohrabuddin.
        In Koganti Lakshmi Vs. State Government of Andhra Pradesh17, on a review 
of case law, this Court directed entrustment of investigation of a criminal case
to the CBCID to ensure that fair and impartial investigation is held into the
serious complaint of burglary/robbery allegedly committed in a Jewellary shop at
Vijayawada. 
        Coming to the submission of the learned Assistant Government Pleader that
respondent No.3 submitted a report to respondent No.2, I have carefully gone
through the said report. A perusal of the said report shows that respondent No.3
has failed to address himself to the core issue raised by the petitioners, viz.,
whether there is any reason for the petitioners to apprehend bias on the part of
respondent No.4. Instead, respondent No.3 has solely relied upon the reports of
the Sub-Divisional Police Officer, Nandyal and respondent No.4. None of these
officers have gone into the grievance of the petitioners and tried to redress
the same. 
        On a careful consideration of the facts of this case, it cannot be held
that the apprehensions expressed by the petitioners are without any basis. I am,
therefore, of the opinion that interests of justice would be served if the
investigation is entrusted to an agency, other than the local Police, as serious
allegations have been made against them. It is, however, made clear that this
order shall not be understood as this Court expressing its conclusive opinion
either on the professed innocence of the petitioners or on the allegations of
the petitioners against respondent No.4 or the other local Police officials.
        On the premises as above, the Writ Petition is allowed. Respondent No.3 is
directed to transfer Crime No.162 of 2008 on the file of respondent No.5-Police
Station to C.B.C.I.D. for further investigation.

?1) (1924) 1 K.B.256.
2) (1955) 1 QB 41
3) (1960) 2 Q.B.167
4) (1969) 1 Q.B.577.
5) (1993) 2 W.L.R.883.
6) (1921) 61 DLR 656
7)AIR 1970 SC 150
8)AIR 1987 SC 454
9) (1993) 4 SCC 10
10) (2004) 4 SCC 158.
11) (2006) 3 SCC 374
12) AIR 1997 SC 95
13 (2009) 9 SCC 610
14) 1994 Supp (1) SCC 145
15) (2006) 2 SCC 677
16) (2010) 2 SCC 200
17) 2010 (3) ALT 200


Whether in each and every case triable by the Court of Session the accused shall be arrested and released on bail. ? = There is no requirement in law that in each and every case triable by the Court of Session the accused shall be arrested and released on bail. When only summons were issued to the accused to secure his attendance after the charge sheet is filed in a case triable by Court of Session the accused shall not be compelled to approach the Sessions Court/Special Court and to obtain bail. In every case triable by Court of Session unless the accused is arrested and is in judicial custody,, the question of his obtaining bail from the Sessions Court does not enough while committing the case it is enough on the part of the committing Magistrate to bind over the accused with or without sureties undertaking to appear before the Sessions Court till the conclusion of the trial.


THE HON'BLE SRI JUSTICE R. KANTHA RAO      
Criminal Petition No.9099 of 2010

17-09-2010

Guddanti Narasimha Rao

The State of A.P. and another

Counsel for the Appellants: Mr. P.Ragendra Reddy

Counsel for the Respondent :  Public Prosecutor

:ORDER:

This Criminal Petition is filed under Section 482 Cr.P.C. seeking to issue a
direction to the Additional Judicial Magistrate of First Class, Chirala,
Prakasham District not to insist the petitioner to obtain bail at the time of
committing P.R.C.No.26 of 2010 to the Court of Sessions.

I have heard the learned counsel appearing for the petitioner and the learned
Public Prosecutor representing the State.

On a report lodged by the second respondent-complainant the police registered a
case under Section 506 IPC and Section 3(1)(x) of the SC and ST (POA) Act,
investigated into and filed a final report stating that the case is false.
Subsequently, in protest the second respondent filed a petition and the learned
Magistrate after recording sworn statement of the second respondent, took
cognizance of the case against the petitioner under Section 3(1)(x) of SC and ST
(POA) Act, 1989.
Since the offence is triable by the Special Court for the trial of offences
under prevention of atrocities Act, it has to be committed by the magistrate to
the said Court.  It is submitted by the learned counsel representing the
petitioner that at the time of committing the case, the learned Magistrate is
insisting upon the petitioner to obtain order of bail from the Special Court, or
any other competent court as the case may be, and therefore, the petitioner
filed the present criminal petition to issue the required direction to the
learned Magistrate.
It can be understood from Section 209 Cr.P.C. that when the Court directly
issues summons to the accused to secure his attendance and in obedience thereto,
the accused attends before the magistrate, the magistrate while committing case
to the Court of Session can bind him over to the Sessions Court on his executing
a bond, as provided under Section 441 Cr.P.C. Obtaining bail is not a
requirement as per Section 209 Cr.P.C.  Further, there is no provision under
prevention of atrocities act for granting anticipatory bail.
From the language of Section 209 Cr.P.C., it does not appear that at the time of
committing the case to the Court of Session, he must be on bail by the Sessions
Court.
        Section 209 Cr.P.C. lays down that when it appears to the Magistrate that
the offence is exclusively triable by Court of Session, he shall
a) commit, after complying with the provisions of Section 207 or 208, as the
case may be, the case to the Court of Session, and subject to the provisions of
this code relating to bail, remand the accused to custody until such commitment
has been made;
b) subject to the provisions of this Code, relating to bail, remand the accused
to custody during; and until the conclusion of, the trial;

The expression subject to the provisions of this code relating to bail can only
be understood to mean subject to the provisions in Chapter 33 of the Code.

When the accused appeared before the Court on receiving summons from the Court
issued after registering the PRC, and undertakes himself to appear before the
Magistrate during the committed proceeding and also to appear before the Court
of Session/Special Court and the accused not being arrested and released on bail
earlier in connection with said case, need not be driven to obtain bail from the
Court of Sessions/Special Court.  Section 441(3) Cr.P.C. lays down, if the case
so requires the bond shall also bind the person released on bail to appear when
called upon the High Court or Court of Session or other court to answer the
charge.

There is no requirement in law that in each and every case triable by the Court
of Session the accused shall be arrested and released on bail.  When only
summons were issued to the accused to secure his attendance after the charge
sheet is filed in a case triable by Court of Session the accused shall not be
compelled to approach the Sessions Court/Special Court and to obtain bail.  In
every case triable by Court of Session unless the accused is arrested and is in
judicial custody,, the question of his obtaining bail from the Sessions Court
does not enough while committing the case it is enough on the part of the
committing Magistrate to bind over the accused with or without sureties
undertaking to appear before the Sessions Court till the conclusion of the
trial.

Therefore, this Court agrees with the submission made by the learned counsel
appearing for the petitioner and the learned Magistrate is hereby directed not
to insist the petitioner to obtain bail from the Court concerned for the purpose
of commitment of P.R.C. to the Special Court or Court of Sessions and the
Magistrate can commit the case by obtaining personal bond from him to appear
before the Special Court ensuring his attendance before the said Court till the
conclusion of the trial.
The criminal petition is accordingly allowed.


Section 3(1)(x) of the Act reads as under: 3(1)(x). Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Thus, the offence must necessarily have occurred in any place within public view. Admittedly, the offence occurred within the residence of the petitioner. Consequently, whether there was any intimidation or insult is of no consequence inasmuch as it relates to the offence under Section 3(1)(x) of the Act.

THE HONOURABLE SRI JUSTICE K.G. SHANKAR          
CRIMINAL PETITION NO.1770 of 2008  

09-11-2011

D. Santosh Reddy      

The S.H.O., of Shamshabad P.S.,Rep. by Public Prosecutor High Court of A.P.,
Hyderabad and another

COUNSEL FOR PETITIONER: Sri V. Eswaraiah Chowdary      

COUNSEL FOR RESPONDENT NO.1: Public Prosecutor        
COUNSEL FOR RESPONDENT NO.2: Pochiraju Rameshwara Prasad              

ORDER:

        The unfortunate second respondent, who is the de facto complainant, was
allegedly abused referring to the community of the second respondent by the
petitioner.  The second respondent consequently lodged a complaint alleging that
the petitioner committed the offence under Section 3(1)(x) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,
'the Act').  Police laid final report closing the complaint and referring the
case.  Consequently, the second respondent filed a protest petition before the
VIII Metropolitan Magistrate, Rajendranagar, Ranga Reddy District.  The protest
petition was numbered as P.R.C. No.37 of 2008.  The accused  then laid the
present petition seeking to quash further proceedings in P.R.C. No.37 of 2008 on
the ground that no case has been made out.
        Sri V. Eswaraiah Choudary, learned counsel for the accused/petitioner,
drew my attention to the complaint lodged by the second respondent.  The
complaint is to the effect that on 19.10.2006, at about 10.30 a.m., when the
second respondent went to the house of the petitioner/accused, the
petitioner/accused abused the second respondent with reference to his community
as scheduled caste person and also otherwise has intimidated the second
respondent.
        The background of the case: The second respondent has been working under
one Gurava Reddy.  Admittedly, Gurava Reddy sent the second respondent to the
petitioner asking him to get back the money due by the petitioner to Gurava
Reddy.  Police recorded that there have been cases and counter cases between
Gurava Reddy and the petitioner.  The petitioner filed a case against Gurava
Reddy in C.C. No.818 of 2006 on the file of the VIII Metropolitan Magistrate,
Rajendranagar, Ranga Reddy District.  Similarly, Gurava Reddy in his turn filed
a case against the petitioner in C.C. NO.123 of 2007 on the file of the same
Court.  Both the case are pending trial.
        The learned counsel for the petitioner contended that where there are
cases and counter cases between the petitioner and Gurava Reddy, Gurava Reddy
uses the second respondent to foist a false case against the petitioner.
        I am afraid that whether the case filed by the second respondent is true
or false cannot be examined in this forum.  It is for me to take the facts as
they are and examine whether a case is made out or otherwise.  If a case prima
facie is made out, it is for the parties to fight it out before the trial Court.
        It is the case of the second respondent that the alleged abuse occurred at
the house of the petitioner.  Under Section 3(1)(x) of the Act, an offence is
made out if the insult or intimidation as the case may be to a member of
scheduled caste or scheduled tribe occurred "in any place within public view".
        It is the contention of the learned counsel for the petitioner that the
house of the petitioner cannot be treated as a public place or any place within
the public view and that the offence under Section 3(1)(x) of the Act therefore
could not be made out.
        Sri P. Rameswara Prasad, learned counsel for the second respondent,
contended that albeit the incident occurred in a private place there was
intimidation and threat to the second respondent and that consequently a prima
facie case is made out.  I am unable to agree with the contention of the learned
counsel for the second respondent so far as the offence under Section 3(1)(x) of
the Act is concerned.
        Section 3(1)(x) of the Act reads as under:
        3(1)(x). Intentionally insults or intimidates with intent to humiliate a
member of a Scheduled Caste or a Scheduled Tribe in any place within public
view.

        Thus, the offence must necessarily have occurred in any place within
public view.  Admittedly, the offence occurred within the residence of the
petitioner.  Consequently, whether there was any intimidation or insult is of no
consequence inasmuch as it relates to the offence under Section 3(1)(x) of the
Act.
        At the same time, the complaint of the second respondent prima facie
establishes a case under Section 506 Indian Penal Code (IPC).  There is no
embargo as in Section 3(1)(x) of the Act for the offence under Section 506 IPC
that the offence should have occurred in a public place.  Mere criminal
intimidation would be sufficient to constitute the offence under Section 506
IPC.
        The averments of the complaint of the second respondent established the
offence under Section 506 IPC.  The case ought to be continued by the trial
Court for the offence under Section 506 IPC.
        Unfortunately, Section 506 IPC is a non-cognizable offence.  Police cannot
investigate the case against the accused without prior permission of the Court.
Such a permission has not been obtained from the Court to proceed with the case.
Consequently, the case cannot be continued even for the offence under Section
506 IPC.  In effect, the very prosecution is misconceived and is unsustainable.
        I, therefore, accept the claim of the petitioner.  This petition
consequently is allowed.  Further proceedings in P.R.C. No.37 of 2008 on the
file of the VIII Metropolitan Magistrate, Rajendranagar, Ranga Reddy District,
are hereby quashed.

________________  
K.G. SHANKAR, J  
9-11-2011

Sub Divisional Police Officer, Dhone took up investigation in this case in accordance with Rule 7 of the S.Cs and S.Ts (Prevention of Atrocities) Rules, 1995= no illegality or irregularity or impropriety - investigating on oral permission from concerned authority = This not a case where P.W-8 started, proceeded and completed investigation without any authorisation from the competent authority viz., the Superintendent of Police. In this case P.W-8 obtained oral permission of the competent authority for investigation and started the investigation and while proceeding with the investigation, he received formal proceedings from the competent authority two days thereafter. Subsequently P.W- 8 continued the investigation and collected some more evidence and arrested the accused. In my opinion, until getting formal orders of the competent authority empowering the investigating officer for investigation in a case of this nature, the department cannot afford to wait and cannot allow evidence to dwindle without its collection and preservation. The proceedings dated 14.12.2003 of the Superintendent of Police validate the entire investigation of P.W-1 in this case. Therefore, there is no illegality or irregularity or impropriety on the part of P.W-8 in taking up investigation of this case and completing the investigation.; It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched P.W-1 on his cheek. The medical officer P.W-5 found a scratching injury only on chest, apart from complaints of pain on neck. He did not find any injury on any cheek of P.W-1. There is no medical corroboration for the overt act alleged against A-3. - Genesis of this incident appears to be the unauthorised entry and movement of P.W-1 across garden land belonging to A-1; and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went away and after two days he gave Ex.P-1 report alleging abuses in the name of his caste.= It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched P.W-1 on his cheek. The medical officer P.W-5 found a scratching injury only on chest, apart from complaints of pain on neck. He did not find any injury on any cheek of P.W-1. There is no medical corroboration for the overt act alleged against A-3. Therefore, I doubt the presence of A-3 at the scene and his participation in the offence. If really A-2 intended to insult P.W-1 as he belongs to Mala caste, A-2 could have dealt with blows on P.W-1 with any stick or other weapon without touching him. The fact that A-2 is alleged to have caught hold of neck of P.W-1 and scratched on chest of P.W-1, indicates that he has no discrimination on the basis of caste. A-2 did not hesitate to touch P.W- 1 with his hands. It is contended by the accused during trial in the lower Court that P.W-1 questioned A-1 because he was moving through agricultural land belonging to A-1 unauthorisedly. This is not a case where A-1 questioned P.W-1 on the ground that he was moving in the locality of the accused. P.W-3 denied the said suggestion. On the other hand, P.W-4 who turned hostile for the prosecution deposed that A-1 abused P.W-1 saying as to how he has got right to move through his garden land. Genesis of this incident appears to be the unauthorised entry and movement of P.W-1 across garden land belonging to A-1; and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went away and after two days he gave Ex.P-1 report alleging abuses in the name of his caste. Evidence of P.W-4 casts shadow of doubt on the prosecution case as to the reason for the incident as contended by the prosecution. Even as per the prosecution case at the place of incident, A-1's agricultural land is there. In those circumstances, I am of the opinion that the lower Court did not appreciate the evidence on record with reference to genesis of the incident and came to an erroneous conclusion in favour of the prosecution. I do not agree with the reasoning and finding of guilt recorded by the lower Court.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              

CRIMINAL APPEAL No.2520 of 2004    

06-09-2011


Mogili Seshi Reddy and others
       
The Station House Officer, Jonnagiri Police Station Kurnool Dist and another

Counsel for the Appellants : Sri A.Chandraiah Naidu

Counsel for the Respondents:  Public Prosecutor

JUDGMENT :  
        A-1 to A-3 who are father and sons are the appellants herein.  They were
convicted by the lower Court under Section 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and were sentenced to
Simple Imprisonment for six months and fine of Rs.1,000/- each.  A-2 and A-3
were also convicted under Section 323 I.P.C and were sentenced to pay fine of
Rs.1,000/- each.  Questioning the same, A-1 to A-3 filed this appeal.
        2) P.W-1/victim belongs to Mala community which is a scheduled case, where
as A-1 to A-3 belong to Reddy community.  There is no dispute about the castes
of the parties.  Ex.P-7 is caste certificate relating to P.W-1.  It is alleged
that on 08.12.2003 at about 5.00 P.M when P.W-1 and his sister P.W-2 were 
talking to each other near drinking well in Jonnagiri village, A-1 who is having
agricultural land near the well went to P.W-1 and abused him touching his Mala
caste and questioned him as to whether it was the way for him to move, and that
when P.W-1 questioned A-1 about the manner in which he spoke, A-2 and A-3  
interfered and they also abused P.W-1 touching his Mala caste and pounced upon 
him and caused injuries to him.  Plea of A-1 to A-3 is one of total denial and
one of not guilty.
        3) During trial in the lower Court, P.Ws 1 to 3 supported the prosecution
case. The other eye witness P.W-4 turned hostile to the prosecution and did not
support the prosecution case.  P.W-5 is the medical officer, who examined P.W-1
and issued Ex.P-3 wound certificate.
        4) Even though the offence is stated to have taken place on 08.12.2003 and
in spite of the police station located in the same village, P.W-1 did not choose
to give his report Ex.P-1 to the police on the same day of occurrence.  He gave
Ex.P-1 report to P.W-6, the Assistant Sub Inspector of Police on 10.12.2003 at
10.00 A.M.  It is evidence of P.W-1 that out of fear for the accused, after the
offence he went away to Gooty and returned to the village on 10.12.2003 and
thereafter, gave report to the police.  In a case of this nature, delay of about
40 hours in giving report to the police does not assume much importance.  This
is not an offence relating faction dispute in which there is possibility of
several persons being roped into the case after consultations and
confabulations.
        5) It is contended by the appellants' counsel that when the offence took
place at a public place on road near drinking water well, there is possibility
of persons moving around the scene at the time of offence and that failure of
the prosecution to examine independent witnesses is fatal to the prosecution.
Except details of the scene of offence, there is nothing on record to show that
there were any other persons than P.Ws 1 to 4 and A-1 to A-3 at the scene at the
time of offence.  Even though P.Ws 1 and 2 are closely related as brother and
sister and P.W-3 is related as cousin, there is an independent witness P.W-4 in
this case.  The said independent witness who belongs to Madiga caste did not
support the prosecution case.  Independence of the witnesses cannot be
determined on the basis of their castes.  Even from among the same community
people, there may be independent witnesses.  It gives wrong signals if it is
observed that witnesses cannot be said to be independent simply because all of
them belong to one and the same caste.
        6) P.W-8 who is the then Sub Divisional Police Officer, Dhone took up
investigation in this case in accordance with Rule 7 of the S.Cs and S.Ts
(Prevention of Atrocities) Rules, 1995.  He perused copy of F.I.R in this case
during tapal on 12.12.2003 and thereupon he took up investigation of this case.
He examined P.Ws 1 to 4 on 12.12.2003 itself.  It is contended by the
appellants' counsel that his investigation is vitiated as P.W-8 received
authorisation from the Superintendent of Police by way of proceedings dated
14.12.2003.  It is P.W-8's evidence that after going through F.I.R in this case,
he contacted the Superintendent of Police by phone and obtained permission from
the Superintendent of Police and proceeded with the investigation of this case
thereafter on 12.12.2003 itself and that subsequently on 14.12.2003 he received
proceedings of the Superintendent of Police of the even date authorising him as
investigating officer in this case.  It is no doubt true that Rule 7 of the
Rules is held to be mandatory.  This not a case where P.W-8 started, proceeded
and completed investigation without any authorisation from the competent
authority viz., the Superintendent of Police.  In this case P.W-8 obtained oral
permission of the competent authority for investigation and started the
investigation and while proceeding with the investigation, he received formal
proceedings from the competent authority two days thereafter.  Subsequently P.W-
8 continued the investigation and collected some more evidence and arrested the
accused.  In my opinion, until getting formal orders of the competent authority
empowering the investigating officer for investigation in a case of this nature,
the department cannot afford to wait and cannot allow evidence to dwindle
without its collection and preservation.  The proceedings dated 14.12.2003 of
the Superintendent of Police validate the entire investigation of P.W-1 in this
case.  Therefore, there is no illegality or irregularity or impropriety on the
part of P.W-8 in taking up investigation of this case and completing the
investigation.
        7) Coming to merits of the case, it is contended by the appellants'
counsel that false case was foisted against the accused due to political rivalry
at the instance of one Guruswamy who was elected as Surpanch and who was  
supported by the prosecution party and who was opposed by the accused party
during elections.  P.W-1 denied the suggestion made by the defence counsel in
that regard.  Except a suggestion which was promptly denied, there is no other
material on record to substantiate this contention of foisting false case due to
political reasons.
        8) It is evidence of P.Ws 1 to 3 that A-2 caught hold of neck/throat of
P.W-1 and scratched on his chest and beat him on chest and that A-3 scratched 
P.W-1 on his cheek.  The medical officer P.W-5 found a scratching injury only on
chest, apart from complaints of pain on neck.  He did not find any injury on any
cheek of P.W-1.  There is no medical corroboration for the overt act alleged
against A-3.  Therefore, I doubt the presence of A-3 at the scene and his
participation in the offence.  If really A-2 intended to insult P.W-1 as he
belongs to Mala caste, A-2 could have dealt with blows on P.W-1 with any stick
or other weapon without touching him.  The fact that A-2 is alleged to have
caught hold of neck of P.W-1 and scratched on chest of P.W-1, indicates that he
has no discrimination on the basis of caste.  A-2 did not hesitate to touch P.W-
1 with his hands.  It is contended by the accused during trial in the lower
Court that P.W-1 questioned A-1 because he was moving through agricultural land
belonging to A-1 unauthorisedly.  This is not a case where A-1 questioned P.W-1
on the ground that he was moving in the locality of the accused.  P.W-3 denied
the said suggestion.  On the other hand, P.W-4 who turned hostile for the
prosecution deposed that A-1 abused P.W-1 saying as to how he has got right to
move through his garden land.  Genesis of this incident appears to be the
unauthorised entry and movement of P.W-1 across garden land belonging to A-1; 
and when A-1 questioned P.W-1 about the same, P.W-1 became aggrieved and went     
away and after two days he gave Ex.P-1 report alleging abuses in the name of his
caste.  Evidence of P.W-4 casts shadow of doubt on the prosecution case as to
the reason for the incident as contended by the prosecution.  Even as per the
prosecution case at the place of incident, A-1's agricultural land is there.  In
those circumstances, I am of the opinion that the lower Court did not appreciate
the evidence on record with reference to genesis of the incident and came to an
erroneous conclusion in favour of the prosecution.  I do not agree with the
reasoning and finding of guilt recorded by the lower Court.
        9) In the result, the appeal is allowed setting aside the convictions and
the sentences passed by the lower Court against the appellants 1 to 3/A-1 to A-3
and acquitting them.

_______________________________    
SAMUDRALA GOVINDARAJULU, J        
September 06, 2011

Section 6 of the Specific Relief Act (for short the Act) seeking directions to the defendants to handover physical possession of the suit schedule property= an order which is passed which would sub-serve and promote the interest of justice should be preserved rather than the one which is likely to produce the opposite result. The 1st petitioner herein has admitted to have sold a part of the suit schedule property namely 73 square yards to the respondent herein through Ex.B2(=Ex.A2). Whereas the case of the respondent is that he has purchased the entire suit schedule property comprising of 150 square yards. Ex.B2 document, which is a registered sale deed and the covenant contained therein together with the description of schedule-B property and the plan annexed thereto clearly support the case of the respondent that he purchased the whole of 150 Sq.yds and was put in possession of a dilapidated building standing thereon. To dislodge this claim, the 1st petitioner herein has filed O.S.No.2592/2008, but that suit was dismissed. This apart O.S.No.2102 of 2009 was filed by one of the tenants of the respondent herein seeking injunction against the 1st petitioner herein, that suit is decreed. It presupposes, therefore, that it is tenant of the respondent herein who was found in possession of the suit schedule property in the year 2009 and hence, the averment of the plaintiff/respondent herein that it is during June 2010, the 1st petitioner herein started unauthorized improvements to the suit schedule property with a view to induct the other defendants as tenants, stands to reason to be accepted. He has succeeded in that attempt, as is reflected from Ex.A13, copy of the judgment rendered in W.P.No.15415 of 2010 dated 03.08.2010 instituted by the respondent herein. It is, therefore, clear that during June 2010, the respondent herein has been unjustly deprived of his possession of a dilapidated house by unauthorizedly undertaking improvements thereto so as to realise huge sums of money as monthly rents therefrom. Therefore, I am of the view that the order passed by the learned Principal Senior Civil Judge in O.S.No.1515/2010 does not call for any interference as there is no failure of exercise of jurisdiction on the part of the said Court. Accordingly, the civil revision petition is dismissed. Consequently, miscellaneous petitions, if any shall stand dismissed. No costs.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.4234 of 2015  

04-03-2016

N.Sivaraj Madiga and 3 others Petitioners


M.Durga Redy Respondent  

Counsel for the Petitioners:Sri Vedula Srinivas

Counsel for the Respondent: Sri V.Ravi Kiran Rao                      
                               
<Gist:

>Head Note:

? Citations:
1.      AIR 1953 SC 23
2.      (2004) 4 SCC 664
3.      AIR 1966 SC 153
4.      (2002) 1 SCC 535

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.4234 of 2015  

ORDER:
      This revision is preferred by the defendants in O.S.No.1515
of 2010 on the file of the Principal Senior Civil Judges Court,
Ranga Reddy District.
      The sole respondent herein is the plaintiff in the suit.  The
said suit is instituted under Section 6 of the Specific Relief Act (for
short the Act) seeking directions to the defendants to handover
physical possession of the suit schedule property comprising of 77
square yards in plot No.10, survey No.11/1 situated at Harijan
Colony, Habsiguda, Uppal Mandal, Ranga Reddy District.  The 1st
petitioner/1st defendant herein was the predecessor-in-interest and
title of the suit schedule land.  It is the case of the
respondent/plaintiff that the 1st petitioner/1st defendant has
purchased the suit schedule land forming Plot No.10 admeasuring
150 square yards through a registered sale deed dated 16.04.2003
bearing document No.4431 of 2003 from Sri S.Anand George and  
his brother Sri S.Dilip George.  It is the case of the
respondent/plaintiff that he has purchased a total extent of 450
square yards site comprising of adjacent plot Nos.9 and 10 of
Harijan Colony, Habsiguda, Uppal Mandal, Ranga Reddy District
through a registered sale deed dated 14.09.2005 bearing document
No.9547/2006 (9258/2005).  To this document Smt. S.Suhasini,
Sri B.I. Jhon Wesley and Sri N. Shivaraj Madiga, the 1st
petitioner/1st defendant herein are shown as vendors while the
respondent/plaintiff is shown as vendee/purchaser.  In the
preamble of this document, it is described that vendor Nos.1 and 2
have purchased the schedule-A property on 16.12.2002 while
vendor No.3 has purchased a collapsed house bearing No.1-10
corresponding to new No.1-1-10, plot No.10 forming part of survey
No.11/1 admeasuring 150 square yards situated at Harijan
Colony.  Two separate schedules called schedule-A and schedule-B
property are appended to this document.  Since there is no dispute
whatsoever with regard to schedule-A property comprising of 300
square yards, it is not relevant to deal with it any further.
      Schedule-B property is described as under:
SCHEDULE OF THE PROPERTY        

        All that the collapsed house bearing No.1-10, corresponding to
new No.1-1-10, on Plot No.10, forming part of Sy.No.11/1 admeasuring
150 Sq.Yds., or 125.4 Sq.Mtrs., Situated in Harijan Colony, Habsiguda
Village, Uppal Mandal, Ranga Reddy District, and bounded by:-

 NORTH   ::     30 Wide Road        
                        SOUTH   ::      Plot No.20      
 EAST            ::     30 Wide Road
                        WEST            ::      Plot No.9 of S. Suhasini

      A plan was appended to this sale deed duly reflecting the
whole of plot No.9 comprising of 300 square yards and plot No.10
comprising of 150 square yards, thus totalling to 450 Sq.yds.  The
plan appended as well as the Schedule-B and rest of the sale deed
bears the signatures of all the 3 vendors including the 1st
petitioner/1st defendant herein.
      It will be relevant to note that a 30 feet wide road is lying to
the North of plot No.9 while plot No.10 also has the same road on
its Northern side while it has also a 30 feet road on its Eastern
side.
      It will also be relevant to notice covenant No.3 of the
registered sale deed, document No.9547/2006 which runs as
under:
      3. THAT the VENDORS in pursuance to the above
conveyance had delivered the vacant, physical and peaceful
possession of the schedule property to the VENDEE for his
enjoyment without any hindrance or obstructions whatsoever from
anybody.

      It will be also relevant to notice that this document which is
presented for registration on 14.09.2005 has been subjected to a
scrutiny for deficit stamp duty and consequently, the differential
stamp duty was paid on 14.06.2006 and thereafter the document
was assigned the number No.9547/2006 on 28.06.2006, though it
was assigned initially No.9258 of 2005.
      The suit is instituted on the premises that in June 2010 the
defendant No.1 forcefully commenced modifying works in suit
schedule property to induct the other defendants as tenants into
the suit schedule property and when the plaintiff made protest and
raised objections for the same the 1st petitioner/1st defendant
threatened the plaintiff with dire consequences and also
threatened to file false criminal case under the Scheduled Castes
and Scheduled Tribes (Prevention Of Atrocities) Act.  It was also
the case of the plaintiff, the respondent herein, that he approached
the High court and instituted W.P.No.15415 of 2010 when the 2nd
petitioner herein/2nd defendant is sought to be inducted as tenant
to carryon the retail liquor outlet.  However, the said writ petition
did not survive for adjudication as the 2nd petitioner/2nd defendant
has been granted a license by the State Government for carrying
on retail outlet of liquor at the suit schedule premises, during the
pendency of the said writ petition.  Since the said suit is decreed
now, the present revision is preferred, as under sub section 3 of
section 6 of the Act, no appeal is provided against any such
judgment and decree passed.  
      It will be relevant to notice that the 1st petitioner/1st
defendant has filed O.S.No.2592/2008 for cancellation of sale deed
bearing document No.9547/2006 in respect of part of house
bearing No.1-10 admeasuring 77 square yards comprising of plot
No.10 in survey No.11/1 situated at Harijan Colony, Habsiguda.
The 1st petitioner/1st defendant has also filed another suit
O.S.No.915/2010 seeking perpetual injunction to restrain 3
persons namely V.Yadagiri, Suresh and B.Kailashpathi Goud from
ever interfering with the peaceful possession and enjoyment of the
plaintiff in the plaint schedule property.  It will be also relevant to
notice that earlier thereto a firm by name M/s. Kailash Printers
represented by its proprietor B.Kailashpathi has filed suit
O.S.No.2102/2009 seeking perpetual injunction to restrain the
sole defendant therein from ever interfering with the peaceful
possession and enjoyment of the plaintiff in the plaint schedule
property.  The 1st petitioner/1st defendant herein was impleaded as
the sole defendant to O.S.No.2102 of 2009.  All the four suits
bearing O.S.Nos.2592/2008, 1515/2010, 915/2010 and
2102/2009 were clubbed and tried together.  By a common
judgment rendered on 27.07.2015, the learned Principal Senior
Civil Judge, Ranga Reddy District, decreed the suit
O.S.Nos.1515/2010 and 2102/2009 and dismissed O.S.Nos.2592    
of 2008 and 915 of 2010.  As was already noticed supra, the 1st
petitioner herein was the plaintiff in both the suits
O.S.Nos.2592/2008 and 915/2010.
      While the 1st petitioner was examined as PW.1, the
respondent herein was examined as DW.1.  Exs.A.1 to A.15 were  
marked on behalf of the 1st petitioner herein while Exs.B.1 to B.6
were marked on behalf of the respondent herein.  Ex.A1 is the sale
deed dated 16.04.2003 bearing document No.4431/2003 through  
which the 1st petitioner herein has purchased the suit schedule
property comprising of 150 Sq.Yds.  To this document bearing
No.4431/2003 the schedule of property is described as under:
SCHEDULE OF THE PROPERTY      

        All that the Collapsed House No.1-10 on Plot No.10, in Survey
No.11/1, admeasuring 150 Sq.yds., or 125.4 Sq.Mts., Situated at Harijan
Colony, Habsiguda Village, Uppal Kalan Municipality, Uppal Mandal,
Ranga Reddy District, within the jurisdiction of the Sub-Registrar, Uppal,
Ranga Reddy District and bounded by:-

  NORTH   ::    30 Wide Road        
                         SOUTH   ::     Plot No.20      
  EAST    ::    30 Wide Road
                         WEST    ::     Plot No.9

And more clearly shown in the plan and Red colour annexed herewith

      Ex.A2 is a copy of the sale deed bearing document No.9547
of 2006 dated 14.09.2005.  The original of Ex.A2 is marked on
behalf of the respondent herein as Ex.B2.  Exs.A.3 to A.10 and
A.15 are electricity demand bills while Ex.A.11 and A.12 are the
payment receipts while Ex.A13 is the copy of the order passed in
W.P.No.15415 of 2010 dated 03.08.2010 referred to supra.
Ex.A.14 is a copy of the proceedings of the Deputy Director of
Social Welfare Department dated 26.06.2003 marked to 1st
petitioner herein.
      It is not dispute that through Ex.A1, the 1st petitioner herein
has acquired right, title and interest in respect of the suit schedule
property.  The claim of the respondent herein is that the same
property has been purchased by him through Ex.B2, copy of which
is marked also as Ex.A2.  The description of the schedule property
found in Ex.A.1 and Ex.B.2 (A.2) tallies in all respects. Ex.B2 is
disputed by the 1st respondent herein on the premises that he has
sold only 73 square yards, but not 150 square yards, which has
been purchased by him under Ex.A1.  That is the reason why the
1st petitioner has filed O.S.No.2592/2008 seeking cancellation of
Ex.B2 (=Ex.A2) to the extent of 77 square yards, and that suit has
now been dismissed.  It can be seen that the suit schedule
property was described as lying in dilapidated condition as is
reflected in Ex.A1 as well as Ex.B2.  Ex.B2 never described that
only 73 square yards out of 150 square yards has been sold by the
1st petitioner herein to the respondent.  Even the plan annexed to
Ex.B2 does not reflect that only 73 square yards out of 150 square
yards was sold.  On the contrary, it reflects as if the entire 150
square yards has been sold.  As was already noticed supra, the
whole of 150 square yards is abutting 2 roads on North as well as
on the Eastern side and that is how the boundaries have been
reflected in Ex.B2.  In view of the principle contained under
Sections 61, 62, 64, 91 and 92 of the Indian Evidence Act, it
follows that once Ex.B2 (=Ex.A2) is admitted in evidence, the
contents of that document are also liable to be treated as admitted
in evidence though the contents may not be conclusive evidence of
the fact.
      In one of the earliest decision of the Supreme Court in
Keshardeo Chamria v. Radha Kissen Chamria  the contours
of the power exercisable under Section 115 CPC was considered in
great detail and it was laid down by a 4-Judge Bench as under:
        We now proceed to consider whether a revision was
competent against the order of 25-4-1945 when no appeal lay. It
seems to us that in this matter really the High Court entertained
an appeal in the guise of a revision. The revisional jurisdiction of
the High Court is set out in s. 115 Code of Civil Procedure in
these terms :
"The High Court may call for the record of any case which has
been decided by any Court subordinate to such High Court and
in which no appeal lies thereto, and if such subordinate Court
appears -
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court may make such order in
the case as it thinks fit."
A large number of cases have been collected in Edn. 4 of
Chitaley & Rao's Code of Civil procedure (vol. I), which only serve
to show that the High Courts have not always appreciated the
limits of the jurisdiction conferred by this section. In Mohunt
Bhagwan Ramanuj Das v. Khetter Moni Dassi, 1 Cal. W. N. 617,
the High Court of Calcutta expressed the opinion that sub-cl. (c)
of s. 115, Code of Civil Procedure , was intended to authorise the
High Courts to interfere and correct gross and palpable errors of
subordinate Courts, so as to prevent grave injustice in non,
appealable cases. This decision was, however, dissented from by
the same High Court in Enat Mondul v. Baloram Dey, 3 Cal. W.
N. 581, but was cited with approval by Lord-Williams J. in
Gulabchand Bangur v. Kabiruddin Ahmed, 58 Cal. -111. In
these circumstances, it is worth-while recalling again to mind
the decisions of the Privy Council on this subject and the limits
stated therein for the exercise of jurisdiction conferred by this
section on the High Courts.
As long ago as 1894, in Rajah Amir Hassan Khan v. Sheo Baksh  
Singh, 11 Ind. App. 237, the Privy Council made the following
observations on s. 622 of the former Code of Civil Procedure,
which was replaced by s.115 of the Code of 1908:
"The question then is, did the Judges of the lower Courts in this
case, in the exercise of their jurisdiction, act illegally or with
material irregularity. It appears that they had perfect jurisdiction
to decide the case, and even if they decided wrongly, they did not
exercise their jurisdiction illegally or with material irregularity."

In 1917 again in Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind.
App. 261, the Board observed:

"It will be observed that the section applies to jurisdiction alone,
the irregular exercise or non-exercise of it or the illegal
assumption of it. The section is not directed against conclusions
of law or fact in which the question of jurisdiction is not
involved."

In 1949, in Venkatagiri Ayyangar v. Hindu Religious
Endowments Board, Madras, 76 Ind. App. 67, the Privy Council
again examined the scope of s. 115 and observed that they could
see no justification for the view that the section was intended to
authorise the High Court to interfere and correct gross and
palpable errors of subordinate Courts so as to prevent grave
injustice in non-appealable cases and that it would be difficult to
formulate any standard by which the degree of error of
subordinate Courts could be measured. It was said :

"Section 115 applies only to cases in which no appeal lies, and,
where the Legislature has provided no right of appeal, the
manifest intention is that the order of the trial Court, right or
wrong, shall be final. The section empowers the High Court to
satisfy itself on three matters, (a) that the order of the
subordinate Court is within its jurisdiction; (b) that the case is
one in which the Court ought to exercise jurisdiction: and (c)
that in exercising jurisdiction the Court has not acted illegally,
that is, in breach of some provision of law, or with material
irregularity, that is, by committing same error of procedure in
the course of the trial which is material in that it may have
affected the ultimate decision. If the High Court is satisfied on
those three matters, it has no power to interfere because it
differs, however profoundly, from the conclusions of the
subordinate Court on questions of fact or law."

Later in the same year in Joy Chand Lal Babu v. Kamalaksha
Chaudhury, 76 Ind. App. 131, their Lordships had again
adverted to this matter and reiterated what they had said in
their earlier decision. They pointed out :

"There have been a very large number of decisions of Indian High
Courts on S. 115 to many of which their Lordships have been
referred. Some of such decisions prompt the observation that
High Courts have not always appreciated that although error in
a decision of a subordinate Court does not by itself involve that
the subordinate Court has acted illegally or with material
irregularity so as to justify interference in revision under sub-s.
(c), nevertheless, if the erroneous decision results in the
subordinate court exercising a jurisdiction so vested, a case for
revision arises under sub-s. (a) or sub-s. (b) and sub-s.(c) can be
ignored.

7. REFERENCE may also be made de to the observations of Bose  
J. in his order of reference in Narayan Sonaji v. Sheshrao
Vithoba, A. I. R. 1948 Nag. 258 wherein it was said that the
words "illegally" and "material irregularity" do not cover either
errors of fact or law. They do not refer to the decision arrived at
but to the manner in which it is reached. The errors
contemplated relate to material defects of procedure and not to
errors of either law or fact after the formalities which the law
prescribes have been complied with.

We are therefore of the opinion that in reversing the order of the
executing Court dated 25-4-1945 reviving the execution, the
High Court exercised jurisdiction not conferred on it by s. 115 of
the Code. It is plain that the order of the Subordinate Judge
dated 25-4-1945 was one that he had jurisdiction to make, that
in making that order he neither acted in excess of his
jurisdiction nor did he assume jurisdiction which he did not
possess. It could not be said that in the exercise of it he acted
with material irregularity or committed any breach of the
procedure laid down for reaching the result.
      It is, therefore, for the 1st petitioner herein to impeach that
document and its contents thereof in an appropriate manner.  In
other words, the burden is on him to impeach the contents of
Ex.B2, and he has failed to discharge the said burden.  Covenant
No.3 of Ex.B2 has clearly demonstrated that the 1st petitioner
herein has delivered possession of the suit schedule property to the
respondent herein.  Therefore, the petitioners herein have failed to
dislodge the veracity of the claim of the respondent herein, that he
was in possession pursuant to Ex.B.2 (A.2).
      It will be also relevant to notice that the 1st petitioner herein
has filed another suit O.S.No.915/2010 seeking injunction against
3 others, who are the tenants of the respondent herein.  The 1st
petitioner herein has lost the said suit also.  On the contrary one of
those 3 persons namely Kailashpathi has earlier instituted
O.S.No.2102/2009 against the 1st petitioner herein seeking
injunction as the 1st petitioner herein was allegedly interfering with
his possession.  That suit is now decreed.
      It is true that a suit instituted under Section 6 of the Act is
considered as a summary proceedings and it is only intended for
securing restoration of possession to the plaintiff who has been
disposed not in accordance with law.  The respondent/plaintiff has
specifically averred that it is during June 2010, the 1st petitioner
herein started making unauthorized improvements to the suit
schedule property with a view to induct the other defendants as
tenants therein and when the plaintiff resisted, he was threatened
with dire consequences.  It is, therefore, a clear case where the
plaintiff has set up that he was unjustly dispossessed during June
2010 by undertaking improvements to the dilapidated building and
hence he instituted the suit O.S.No.1515 of 2010 in three months
thereafter.
      The Supreme Court has clearly brought out the scope and
ambit of provisions of Section 6 of the Specific Relief Act in Sanjay
Kumar Pandey and others Vs. Gulbahar Sheikh and others , in
the following words:
       A suit under Section 6 of the Act is often called a
summary suit inasmuch as the enquiry in the suit under
Section 6 is confined to finding out the possession and
dispossession within a period of six months from the date of the
institution of the suit ignoring the question of title.  Sub-Section
(3) of Section 6 provides that no appeal shall lie from any order
or decree passed in any suit instituted under this Section.  No
review of any such order or decree is permitted.  The remedy of a
person unsuccessful in a suit under Section 6 of the Act is to file
a regular suit establishing his title to the suit property and in
the event of his succeeding he will be entitled to recover
possession of the property notwithstanding the adverse decision
under Section 6 of the Act.  Thus, as against a decision under
Section 6 of the Act, the remedy of unsuccessful party is to file a
suit based on title.  The remedy of filing a revision is available
but that is only by way of an exception; for the High Court would
not interfere with a decree or order under Section 6 of the Act
except on a case for interference being made out within the well
settled parameters of the exercise of revisional jurisdiction under
Section 115 of the Code.
       A perusal of the order of the High Court shows that the
High Court has for the purpose of reversing the decree of the
trial Court relied on the oral statements of Natai Sheikh, PW-3
and Ram Sevak Ram, PW-5.  One sentence each from the two    
depositions has been extracted and set out by the High Court in
its order for the purpose of forming an opinion that they are not
the plaintiffs but the defendants who were in possession of the
suit property before six months from the date of the institution
of the suit.  The High Court has not looked into all the material
available on record and has also not indicated clearly the
availability of any of the grounds within the parameters of
Section 115 of the Code so as to exercise revisional jurisdiction
calling for reversal of the decision of the trial Court under
Section 6 of the Act.  The revision filed before the High Court
cannot be said to have been satisfactorily disposed of.
      But, however, it is for the petitioners to establish that the
judgment and decree passed in the suit is liable to be revised
within the well laid out parameters contained in Section 115 CPC.
Unless it is demonstrated that the subordinate Court has acted in
exercise of its jurisdiction illegally or with material irregularity, the
revision is not maintainable.  It may be true that instead of
preferring the revision under Section 115 CPC, it has been
preferred under Article 227 of the Constitution so that there can be
wider scope for the scrutiny of this Court in exercise of its power of
superintendence.
      It is a settled principle of law that if a subordinate court has
jurisdiction to adjudicate a list brought before it, may decide it
rightly or wrongly, whether the question be one of law or of fact.
That itself would not make such a case fall under any of the 3
clauses mentioned in Section 115(1) CPC. It is wholly apt to recall
at this moment, the words of P.B.Gajendragadkar, Chief Justice,
speaking for the constitution Bench of the Supreme Court in
Pandurang Dhondi Chougule and others Vs. Maruti Hari
Jadhav and others  as under:
        The provisions of S. 115 of the Code have been examined by
judicial decisions on several occasions. While exercising its
jurisdiction under S. 115, it is not competent to the High Court
to correct errors of fact, however gross they may be, or even
errors of law, unless the said errors have relation to the
jurisdiction of the Court to try the dispute itself. As Cls. (a), (b)
and (c) of S. 115 indicate, it is only in cases where the
subordinate Court has exercised a jurisdiction not vested in it by
law. or has failed to exercise a jurisdiction so vested, or has
acted in the exercise of its jurisdiction illegally or with material
irregularity that the revisional jurisdiction of the High Court can
be properly invoked. It is conceivable that points of law may
arise in proceedings instituted before subordinate Courts which
are related to question of jurisdictions. It is well-settled that a
plea of limitation or a plea of res judicata is a plea of law which
concerns the jurisdiction of the Court which tries the
proceedings. A finding on these please in favour of the party
raising them would oust the jurisdiction of the Court, and so, an
erroneous decision on these pleas can be said to be concerned
with questions of jurisdiction which fall within the purview of S.
115 of the Code. But an erroneous decision on a question of law
reached by the subordinate Court which has no relation to
questions of jurisdiction of that Court, cannot be corrected by
the High Court under S. 115.
      Further, it has been settled that material irregularity in
exercise of jurisdiction does not cover either errors of fact or law
(Madanlal Vs. Shyamlal ).
      Keeping these principles in mind, while conceding that the
exercise of jurisdiction under Article 227 is wider than the one
provided under Section 115 CPC, all I need to observe is that an
order which is passed which would sub-serve and promote the
interest of justice should be preserved rather than the one which is
likely to produce the opposite result.  The 1st petitioner herein has
admitted to have sold a part of the suit schedule property namely
73 square yards to the respondent herein through Ex.B2(=Ex.A2).
Whereas the case of the respondent is that he has purchased the
entire suit schedule property comprising of 150 square yards.
Ex.B2 document, which is a registered sale deed and the covenant
contained therein together with the description of schedule-B
property and the plan annexed thereto clearly support the case of
the respondent that he purchased the whole of 150 Sq.yds and
was put in possession of a dilapidated building standing thereon.
To dislodge this claim, the 1st petitioner herein has filed
O.S.No.2592/2008, but that suit was dismissed.  This apart
O.S.No.2102 of 2009 was filed by one of the tenants of the
respondent herein seeking injunction against the 1st petitioner
herein, that suit is decreed.  It presupposes, therefore, that it is
tenant of the respondent herein who was found in possession of
the suit schedule property in the year 2009 and hence, the
averment of the plaintiff/respondent herein that it is during June
2010, the 1st petitioner herein started unauthorized improvements
to the suit schedule property with a view to induct the other
defendants as tenants, stands to reason to be accepted.  He has
succeeded in that attempt, as is reflected from Ex.A13, copy of the
judgment rendered in W.P.No.15415 of 2010 dated 03.08.2010
instituted by the respondent herein.  It is, therefore, clear that
during June 2010, the respondent herein has been unjustly
deprived of his possession of a dilapidated house by
unauthorizedly undertaking improvements thereto so as to realise
huge sums of money as monthly rents therefrom.
      Therefore, I am of the view that the order passed by the
learned Principal Senior Civil Judge in O.S.No.1515/2010 does not
call for any interference as there is no failure of exercise of
jurisdiction on the part of the said Court.
      Accordingly, the civil revision petition is dismissed.
      Consequently, miscellaneous petitions, if any shall stand
dismissed.  No costs.
_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
04.03.2016

Thursday, August 25, 2016

even there is excess of discharge of official duty, sanction is mandatory - Apex Court including Anjani Kumar Vs.State of Bihar , it was held when complaint filed against the government official as a counterblast to the action taken by him and when the facts show the complaint as afterthought with deliberations roped the official in continuation of proceedings amounts to abuse of process therefrom quashed the proceedings and for that conclusion referred several expressions.

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

CRIMINAL PETITION No.4319 of 2015  

28-01-2016

S.Bala Krishna ...Petitioner/Accused

The State of Telangana  Rep.by its Public Prosecutor High Court, Hyderabad and
another .Respondents

Counsel for the petitioner : M/s K.R.Koteswara Rao

Counsel for respondent No.1 :Public Prosecutor
Counsel for respondent   No.2:G.Tirupati Reddy

<GIST  : ---

>HEAD NOTE : ---

? Cases referred:                                :
1.  AIR 2001 SC 2547
2.  AIR 1939 FC 43
3.  AIR 1948 PC 128
4.  AIR 1955SC 309
5.  AIR 1955 SC 287
6.  AIR 1956 SC 44
7.  AIR 1957 SC 458
8.  AIR 1979 (0) 1841
9.  AIR 1966 SC 220
10. AIR 2000 SC 3187
11. AIR 1955 SC 287
12. 2015(1) SCC 513
13. 1993 3 SCC 339
14. 2008(11) SCC 289
15. 2015 AIR SCW 3282  
16. 2012 3 SCC 64
17. (2012)12 SCC 72
18. (2006)4 SCC 584
19. 2015 12 scale 500
20. AIR 1951 SC 207
21. 2015 (2) ALD (Crl) 627(SC)
22. AIR 2005 SC 4305
23. (2005) 8 SCC 130
24. 2015 AIR SCW 2643  
25. 2004 8 SCC 40
26. AIR (2013) SC 3018
27. 1976 3 SCC 736
28. (2008) 5 SCC 248


HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

Crl.P.No.4319 of 2015

ORDER :
         This petition is filed under Section 482 of the Code of Criminal
Procedure (for short, the CrPC) by the Petitioner/accused to quash the
order passed in Crl.M.P.No.236 of 2015 in Cr.No.154 of 2011 on the file of the
X Additional Chief Metropolitan Magistrate, Secunderabad, who took
cognizance of protest petition filed by the defacto-complainant for the
offences u/sec.3(1)(X) of SCs/STs(POA) Act, 1989.
         2. Heard the learned counsel for the petitioner so also the learned
Public Prosecutor representing State-1st respondent and also the learned
counsel for the 2nd respondent-defacto-complainant and perused the material
on record.
        3. The factual matrix is that the 2nd respondent by name V.Jai Prakash
is
member of the 8th ward of cantonment area. The petitioner/accused is
present Defence Estates Officer, Kolkota Circle, Kolkota, West Bengal and
earlier worked as Chief Executive Officer of the Secunderabad cantonment
member. The 2nd respondent presented a police report dated 25.08.2011, to
the Station House Officer, Maredpally Police Station, against the petitioner
herein with the averments that he belongs to Arrava mala of S.C. community
and elected Ward Member from ward No.8 of Secunderabad cantonment from  
the reserved constituency, in  the elections of May, 2008, that it is the
practice in the cantonment Board that whenever Board meeting is held, the
proceedings have to be recorded in the minutes book and got thereof to be
circulated and in the Board meeting held on 20.07.2011, several deliberations
took place indicating the irregularities in the prime land and unauthorized
constructions taking place in the limits of the Secunderabad cantonment
Board, that he requested to furnish the details of all cases pending in the
Courts with present status as there are many instances where unscrupulous
builders obtained status quo and making unauthorized constructions, that the
Board taken no steps against said violators from the Court orders from which
the collusion between the builders and local standing counsel appears
apparent, and on hot debate on this aspect, his request was unanimously
supported resolved by the Board for initiation of suitable action within 15
days. While so on 22.08.2011 during the public Board meeting, he was
shocked to see that deliberations took place during Board meeting dated
20.07.2011 not formed part of the minutes and the resolutions without
reasonable explanation from the concerned officials, that when he strongly
questioned and demanded to find out these lapses as the matter concerned of
prime properties of Board and sanctity of Court orders, for which the accused
Balakrishna-the then Chief Executive Officer, got infuriated remarked that his
status is permanent in nature while Board members will come and go and said
discussion grew serious and in the presence of Board members, staff, media
general public and in the presence of the persons A.Srinivas, J.Ramakrishna,
S.Nagraju, A.Raju, the accused abused and instigated the complainant by
using filthy language and tarnished the image of the complainant and
reputation but also warrants prosecution under the relevant provisions of law,
and the said report was received on 26.08.2011 at 15.30 hours and registered
as Cr.No.154 of 2011 u/sec.3(1)(x) of the Act by the Sub Inspector of Police
and handed over investigation to the ACP, Mahankali.
         4. The police from said investigation filed final report u/sec. 173 of
Cr.P.C. dated 18.05.2012 column 6 shows lack of evidence is the cause. The
final report reads that on 26.08.2011 at 3.40 hours V.Jai Prakash(complainant)
lodged a complaint at Marredpally Police Station, Hyderabad who registered
the same as Cr.No.154 of 2011 u/sec.3(1)(x) of the Act, and in the course of
investigation besides the complainant, 20 more witnesses examined who were
the persons present at the incident dated 23.09.2011 of the Board meeting
and besides recording their statements also and from the discreet enquiries
by the Investigating Officer, it revealed that one Ramakrishna, husband of
Smt. J.Anuradha-a Cantonment Board Member,  is a sleeping partner in Octroi
and Toll Tax Contract and their interest was suffered due to termination said
contract. One Baluka Mallikarjun  and J.Ramakrishna said to have visited the
office of accused and discussed about termination of Octroi and Toll Tax
contract and accused told to one Kesava Reddy the close associate  of
complainant, not to charge excess amount than rates prescribed in the S.R.O.
and not to violate terms of the contract but said Kesava Reddy  never tried to
take the advice of accused in right manner to control violations. It was so on
21.07.2011, the Board has taken up the matter and with a voice vote, the
Octroi and Toll Tax contract was terminated, in the said Board meeting,
B.Narmada, J.Anuradha and Kesava Reddy and Jai Prakash voted against the  
proposal of termination of the Octroi and Toll Tax Contract. The contractors
filed a Writ Petition in the High Court and the same was dismissed by the High
Court, that prior to the Cantonment Board meeting on 22.08.2011, i.e. on
18.08.2011 Keshava Reddy, V.Jai Prakash(complainant), Banuka Mallikarjun
and M.Ramakrishna visited the Sub Area Office to meet the GOC regarding
Octroi and Toll Tax issue and the alleged accused was present in the Andhra
Sub Area Office and pressurized him to release bank guarantee and even
though the CEO tried to make them understand, they have stated that the
Bank Guarantee should be released, else they will not allow him to work in
the Cantonment.  As far as the witnesses examined concerned, some members  
of the Board who attended the meeting denied to have occurred the alleged
incident of abusing the complainant castigating him by the alleged accused
Balakrishna, CEO, on the other hand, it can also be considered that, the
reports who were brought by the complainant speaking in favour of the
complainant and the alleged Smt. Bankuka Narmada, Smt. J.Anuradha,  
S.Keshava Reddy and V.Jai Prakash and others brought by the complainant are
his interested witnesses since their intention is only to support him to get his
wish and Keshava Reddy fulfilled, hence their version cannot be relied upon,
whereas, the police report given only on 26.08.2011 with afterthought to
involve the accused in the offence supra,  as the accused is not acting to their
will and wish and for not favouring them for strictly acting as per rules and
regulations, that K.Madhu Mohan Rao,D.R.O., Hyderabad was present in the
house being the official dignitary and responsible, having acquainted with the
atrocities law and being responsible officer to enquire could not keep quiet
when such alleged incident took place, the print electronic media usually
covers Board meeting and publish the same on the next day news, on the next
day the allegations in the police report are true for such incidents not come in
print and electronic media but the newspapers only speaking cantonment
Board meeting held. But as prior statements furnished by the witnesses above
though supporting version of complainant, V.Jai Prakash of C.E.O. abused in
caste name the complainant, that had the accused Balakrishna abused the
complainant, the language used by the alleged complainant would be the
same, that the complainant established that he managed them to sign on the
statements addressed to me in the way he desired so, but he has forgotten to
take care that the language used by the alleged accused should be similar,
when all the witnesses supporting the complainant speak the facts, the
language which the alleged accused used on the complainant should be
similar, from the above and from the evidence collected reveals, on
22.08.2011 when Board meeting of the Cantonment held at 9 hours at Board
office presided by Major General K.Digvijay Singh, President of Cantonment
Board, the members Head of Sections, Media people and other general public
were present and the meeting was started at 9.15hours and discussions on the
agenda items one by one were going on and item No.5( Revision of rates of
Octroi and toll tax), President asked all the Board members for their views on
termination of Octroi and toll tax contract, some expressed termination and
others for necessary action against the Contactor as per Cantonment Act;
suddenly some arguments with regard to recording of resolutions started and
Jai Prakash(complainant) and Sri Keshav Reddy, members of the Cantonment  
Board shouted loudly saying that the C.E.O. S.Balakrishna should record in the
minutes the resolution which should be as told by them but not as
he(S.Balakrishna) likes, for which the C.E.O. S.Balakrishna replied that
whatever discussions have been taken place in the Board only being recorded
in the Minutes. At that time, Jai Prakash(complainant) repeatedly sdemanded
in high pitch tone and called the CEO as rowdy. Then the CEO pointed out
that he is not a rowdy and discharging his duties as Member Secretary of the
Board and he can report all his objections to the President of the Board. Then
Jai Prakash and Keshav Reddy raised from their chairs and proceeded towards
the CEO abusing in filthy language, but the members stopped them. The CEO
also stood from the chair and shouted that Jaya Prakash(complainant) should
not talk in filthy language and should behave as a responsible office Member
of the Board but not as rowdy element. Subsequently on the request of the
members and President of the Cantonment Board, the Members, Sri  
V.Jayaprakash and the CEO resumed their chairs and proceedings of the Board
were continued and all the items in the agenda were discussed peacefully.
The witnesses who were present when the Incident took place speak that
heated arguments took place between the CEO and the complainant Jai
Prakash and no such uttering of any words castigating the complainant took
place and the version of the complainant Jai Prakash is found contrary to the
version of the said witnesses and the complainant and the CEO are not on
good terms since long on certain issues in the Board and the complainant is
trying to establish his dignity before the other members to down the CEO for
not acting according to his wishes favouring them with regard to the contracts
of certain works which developed and lead to the incident.  In order to corner
the alleged CEO Balakrishna and root out him as he is not favouring them, the
complainant seems to have preferred complaint against him with false and
baseless allegations indulging him in an atrocities case
         5. As the case stood thus, the C.D. file sent to the Public Prosecutor,
PPO,  XI Addl. CMM Court for opinion to finalize the case and the PPO opined
as  not a fit case for charging the accused person for the offence supra and
there is no base even to raise a strong suspicion to say that the things have
happened in the manner as projected by the defacto-complainant and none 
named in the complaint can be charge sheeted for the said offence.
         6. Aggrieved by the same, the complainant filed a protest application
before the learned Magistrate on 10.10.2014 vide Crl.M.P.No.236 of 2015
which reads that the investigating officer has not followed the cardinal
principles of investigation into of offence contemplated under Cr.P.C. and
thereby final closure report for lack of evidence is bad in law and untenable,
that law does not given permission to investigating officer to peep into the
truthfulness of the statements of witnesses recorded but for of the Court to
appreciate during evidence as to the veracity and the conclusions by the
investigating officer from the witnesses statements recorded of no such
utterances by accused taken place abusing of complainant and thereby the
investigating officer exceeded the parameters of law that resulted injustice,
that there is no dispute with regard to the Board meeting held on 23.08.2011
and the other witnesses cited by names Jai Prakash(the protest petitioner-
complainant), S.Kesava Reddy, Smt. Bhanuka Nrmada, the elected members    
of the Board were present in the meeting, but the final report is silent about
this information in column Nos. 12 and 13 shown as blank which shows the
investigating officer not examined any witness. that the S.C.& ST (POA) Act,
1986 is a Special Act and the Government appointed a Senior Officer of the
cadre of Deputy Superintendent of Police to investigate and the investigating
officer no way shown he was duly appointed under Rule 7 of the Act to
investigate by the competent authority, thereby the final report is
unauthorized, hence to reject, that the investigating officer to complete
investigation on top priority within 30 days but admittedly the case was issued
on 26.08.2011 and the final report is 18.05.2012 more than 8 months, that the
opinion of the investigating officer about the delay in lodging report on
22.08.2011 for the occurrence dated 22.08.2011 is afterthought is  unsolicited
and the final report thereby is biased one to help the accused, hence, not to
accept the final report by allowing the petition, record statements of all
witnesses, take cognizance and issue warrants in the above crime against the
accused.
        7. Pursuant to which the protest petition on different dates came for
consideration by return and representation, as the case may be, and the
sworn statement of the complainant in protest petition was recorded by the
learned Magistrate on 07.02.2005 besides J.Ramakrishna, a businessman
A.Sreenivas of Begumpet, S.Nagaraju of Begampet and Raju of Marredpally
saying in one voice as they also attended the Board meeting.
         8. It is important to say in the original report registered as
Cr.No.154 of
2011 by Sub Inspector of Police, Maredpally, the said Jai
Prakash(complainant) mentioned the witnesses present are A.Srinivas,
J.Ramakrishna, S.Nagaraju, A.Raju but not named L.Ws. 2 to 5 of the sworn
statement recorded by the Magistrate on the protest application. Leave about
L.W.1 Jai Prakash sworn statement, in tune to his report J.Ramakrishna who
claimed as businessman of Marredpally, stated that on 22.08.2011 at the
Board Meeting attended by him the complainant Jai Prakash, questioned the
S.Balakrishna-CEO(accused) that the deliberations taken place on 20.07.2011
were not recorded in the minutes of the meeting for which the CEO not given
appropriate explanation, for which Jai Prakash raised high voice, for which
Balakrishna-C.E.O. stated his job is permanent and Board members can come  
and go from which the discussion has become serious, meanwhile Balakrishna
abused Jai Prakash in filthy language by touching his caste as Nuvvu oka
mala lanjakudukku vee, nuvvu naku yanduku yeduru vastunava, nee anthu
chustha, mala nakodaka, mala bastard na tho fight chestay neenu board
keranevakunda chestha.  In fact, he stated that police examined him during
investigation however his statement not recorded. Part-II Case Diary final
report of the police shows said Ramakrishna was examined as L.W.3 on
30.09.2011 and he stated is resident of Plot No.60, Mahendra Hills, East
Maredpally and he stated that the meeting of cantonment Board held on
22.08.2011 and several discussions on several public issues mentioned in the
agenda were discussed and while the meeting was going on several heated
arguments on some topics between Board Members and CEO took place and    
when Jai Prakash(complainant) insisted a reply from the CEO about certain
irregularities committed by him, all of a sudden between Jai Prakash and
C.E.O., heated arguments taken place and said CEO raged and started abusing
Jai Prakash(Complainant) castigated him and tried to beat in a bit of anger
and screemed Jai Prakash touching his caste name. Here actually words
uttered touching caste with an intent to insult if at all not reflected from the
Statement. He was examined by police is not even in dispute by
J.Ramakrishna before the learned Magistrate and L.W.2 and there is no
explanation in the statement before the Magistrate  that even he stated the
actual words not reflected in the statement of the investigating officer when
said Ramakrishna was examined on 07.02.2015, that too, on the protest
petition of Jai Prakash who was supplied with final report and endorsed on
the report from the Court on 02.03.2013, the said version of Ramakrishna
before the investigating officer and not using any actual words of abuse
whether to attract the offence supra or not, to decide the development in the
protest application examination has to be viewed in that perspective. Even
coming to A.Sreenivas, S.Nagaraju and Geethakumari, examined before the
Magistrate on the protest petition on 07.03.2015 and his version is like of
J.Ramakrishna supra whereas, in his examination before investigating officer
as L.W.4 (A.Srinivas), dated 30.09.2011 is stated about half an hour after the
meeting, he heard some loud voice from the Board meeting hall on which he
went to the Board meeting place and observed the C.E.O. was in anger raised
on Jai Prakash as Mala lanjakodaka, nee anthu choosthaa, nenu talchukunte
Boardku Ralevu abused in filthy language. Whereas, the sworn statement
recorded before the Magistrate on protest application, the words used stated
as Mala na kodaka, mala bastard, nuvu mala lanjakodukuvi, nee anthu
chusta, leave about some difference in the said version even before the
investigating officer but both convey the same thereby it is clear that the
investigating officers investigating is not fair as what are the words stated in
his examination of witnesses that he recorded but for that if at all
investigating officer one sided as contended by the complainant. Like in the
statement of Ramakrishna before the investigating officer nothing speaks of
any words uttered actually. It could be even from the statement of L.W.4
A.Srinivas also from the police investigation statement.
       9. Coming to the sworn statement of Raju before the Magistrate is in
tune with A.Sreenivas, J.Ramakrishna and Nagaraju supra which are almost
stereotyped version with even a parrot like.
      10. The learned Magistrate therefrom passed an order dated 10.02.2015
which reads as follows:-
     Complainant is present. His advocate is present. Perused
the case record. The contents of the final report clearly go to
show that there were exchange of filthy words in between the
complainant and accused. Moreover, the contents of the sworn
statements of the complainant and his witnesses P.W.2 to P.W.4
corroborating the allegations leveled by the complainant in his
complaint. The contents of the final report have strengthened
the allegations made by the complainant as the contents
mentioned in the final report clearly visualizing that there was
exchange of words coupled with the filthy nature in between the
complainant and proposed accused. Hence, I felt the allegations
made against the accused are well founded under Section 3(1)(x)
of SC/ST (POA) Act, 1989. Therefore, I felt it will be just and
proper to take the cognizance against the accused under Section
3(1)(x) of SC/ST (POA) Act, 1989. Hence, the cognizance is taken
on accused Sri S.Balakrishna under Section 3(1)(x) of SC/ST
(POA) Act, 1989. The office is directed to register the complaint
as PRC No.11 of 2015. Issue summons to accused and call on  
08.05.2015.
        11. It is against said cognizance order the quash petition filed with
the
contentions that the police having examined as many as 22 witnesses and
concluded from the investigation of a false implication of the CEO Balakrishna
by said Jai Prakash(complainant) for his insult discharged his duties for
extraneous reasons as pointed, taking cognizance by the Magistrate simply by
recording 4 sworn statements besides of complainant as L.Ws.2 to 5 is
untenable and it is not a mere private complaint but outcome after police
investigation referred report from protest application and the cognizance
order of the learned Magistrate is by non-application of mind as unsustainable
apart from the alleged occurrence even from the say in discharge of official
duties in the public Board meeting where the accused was functioning as CEO.
When such is the case, the sanction under Section 175 of Cr.P.C. is mandatory
for the Magistrate to take cognizance without which the cognizance order is
unsustainable and liable to be quashed. Apart from that, the case is falsely
foisted and none of the provisions of SC & ST Act applies and the provisions
are in misuse out of spite and ill-will by the complainant and the Court cannot
allow such an abuse of process to subserve the ends of justice. Apart from
delay in report of occurrence also to be viewed for the deliberations and
consultations in false implication and therefrom to be quashed.
       12. Whereas, the defacto-complainant as 2nd respondent to the quash
petition supported the order of the learned Magistrate saying it is in the four
corners of law as per the Sections 200 to 202 Cr.P.C. in taking cognizance
u/sec. 190 of Cr.P.C. and issued process u/sec. 204 of Cr.P.C. and thereby
sought for dismissal for nothing to interfere by this Court u/sec. 482 of
Cr.P.C.
       13. Heard and perused the material on record.
       14. Instead of reproducing the details respective contentions to avoid
bulky, this Court is going into merits with reference to respective contentions
in arriving just decision of the lis.
       15. Undisputedly, the order of the Magistrate taking cognizance is simply
from statement of the protest petitioner/defacto-complainant-the L.W.1 and
P.Ws.1 and 4 more witnesses whose sworn statements recorded as P.Ws. 2 to  
5 and nothing beyond. If it is a private complaint for the first time to take
cognizance from the enquiry contemplated u/sec.200 to 202 read with 190 of
Cr.P.C. it is a different thing. It is not the same from facts on hand
undisputedly. It is in fact, the alleged occurrence taken place on 22.08.2011
in the Board official meeting while going on where the complainant
participated as 8th ward member whereas, the accused C.E.O. participated in
the official capacity as Member Secretary of the Board. It is in that Course
even from the versions so called heated exchanges took place including in slip
of words or abuse.  In the facts, it is difficult to decipher actual words
uttered context with other official meeting proceedings and participation
from the context as even from the very complainant/informant, it is in
question about the alleging in recording of earlier meeting minutes by the
C.E.O. it was pointed out, for which there was a reply and in that official
status and discharge of duties and in the official meeting there is the alleged
excess in uttering words touching the caste if at all the same is even believed
true.
        16. It is in this context where sanction is required or not to take
cognizance under Section 197 of Cr.P.C. is to be answered.

       17. Section 197 of Cr.P.C. reads as follows:-
197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of a State, of the State Government: 1 Provided that where the alleged
offence was committed by a person referred to in clause (b) during the period
while a Proclamation issued under clause (1) of article 356 of the Constitution
was in force in a State, clause (b) will apply as if for the expression" State
Government" occurring therein, the expression" Central Government" were
substituted.

(2) No Court shall take cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the Union while acting or 
purporting to act in the discharge of his official duty, except with the
previous
sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of
sub- section (2) shall apply to such class or category of the members of the
Forces charged with the maintenance of public order as may be specified
therein, wherever they may be serving, and thereupon the provisions of that
sub- section will apply as if for the expression" Central Government" occurring
therein, the expression" State Government" were substituted.

(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall
take cognizance of any offence, alleged to have been committed by any member 
of the Forces charged with the maintenance of public order in a State while
acting or purporting to act in the discharge of his official duty during the
period
while a Proclamation issued under clause (1) of article 356 of the Constitution
was in force therein, except with the previous sanction of the Central
Government. 

(3B) Notwithstanding anything to the contrary contained in this Code or any
other law, it is hereby declared that any sanction accorded by the State
Government or any cognizance taken by a court upon such sanction, during the
period commencing on the 20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991 , receives the assent of the President, with respect to an
offence alleged to have been committed during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution was in force in the
State, shall be invalid and it shall be competent for the Central Government in
such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may
determine the person by whom, the manner in which, and the offence or
offences for which, the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which the trial is to be
held.

       18. As per Section 197(1) supra the sanction is mandatory from the
government concerned of the public servant, the accused of an offence
alleged to have been committed by him while acting or purporting to act in
the discharge of official duty and without such previous sanction, no Court
shall take cognizance such alleging offences. In three judge Bench expression
of Apex Court in P.K.Pradhan Vs. State of Sikkam Rep. by the CBI  held at
paras-5 to 16 that referring to several of the earlier expressions right from
Hori Ramsingh Vs. Emperor , HHB Gill Vs. the King , Amrik Singh Vs. State
of Pepsu  Sreekantiah Ramayya Munipalli Vs. State of Bombay , Matajog
Dobey Vs. H.C.Bhari , Omprakash Gupta Vs. State of U.P. , B.Saha Vs. M.S.  
Kochar , Baijnath Gupta Vs. State of Madhya Pradesh , Abdul Vahab Ansari
Vs. State of Bihar , K.Satwant Singh Vs. State of Punjab  observed in para-
5 that the legislative mandate engrafted in sub section (1) of Section
197debarring a court
from taking cognizance of an offence except with the previous sanction of the
Government
concerned in a case where the acts complained of are alleged to have been
committed by a
public servant in discharge of his official duty or purporting to be in the
discharge of his official
duty and such public servant is not removable from office save by or with the
sanction of the
Government touches the jurisdiction of the court itself. It is a prohibition
imposed by the
Statute from taking cognizance. Different tests have been laid down in decided
cases to
ascertain the scope and meaning of the relevant words occurring in Section 197
of the Code,
"any offence alleged to have been committed by him while acting or purporting to
act in the
discharge of his official duty." The offence alleged to have been committed must
has
something to do, or must be related in some manner, with the discharge of
official duty. No
question of sanction can arise under Section 197, unless the act complained of
is an offence,
the only point for determination is whether it was committed in the discharge of
official duty.
there must be a reasonable connection between the act and the official duty. It
does not
matter even if the act exceeds what is strictly necessary for the discharge of
the duty, as this
question will arise only at a later stage when the trial proceeds on the merits.
What a court has
to find out is whether the act and the official duty are so inter-related that
one can postulate
reasonably that it was done by the accused in the performance of official duty,
though,
possibly in excess of the needs and requirements of situation  and further
discussing in
para-6 from Hori Ram Singh supra observed that  the question was considered as
to
whether the protection under Section 197 of the Code can be confined only to
such acts of the
public servant which are directly in pursuance of his public office, though in
excess of the duty
or under a mistaken belief as to the existence of such duty, and in para-8
referring to
Sreekantiah Ramavva Munipalli supra quoting Hori Ram Singh supra observed
that Section 197 of the Code should not be construed in such a narrow way so
that the same
can never be applied for of course it is no part of an official's duty to commit
an offence and
never can be. But it is not the duty we have to examine so much as the act,
because an official
act can be performed in the discharge of official duty as well as in dereliction
of it. The section
has content and its language must be given meaning." In para-9 referring to
Amrik
Singh supra held that held Section 197 of Cr.P.C. that if the discharge of
official
duty and the act of the accused complained of are inseparable, sanction under
Section 197 of
the Code would be necessary.. In para-12 referring to Sureshkumar Bhikamchand
Jain supra referring to earlier expression of Matajog Dobey held the
legislative
mandate engrafted in subsection (1) of Section 197 debarring a court from taking
cognizance
of an offence except with previous sanction of the Government concerned, this
Court has laid
down that he said provision is a prohibition imposed by the statute from taking
cognizance
and, as such, exercising jurisdiction of the court in the matter of taking
cognizance and,
therefore, a court will not be justified in taking cognizance of the offence
without such
sanction on a finding that the acts complained of are in excess of the discharge
of the official
duty of the government servant concerned.  Para-14 to 16 referring to the
Constitutional Board expressions of K.Satwanth Singh and also Om Prakash
Gupta supra observed that for claiming protection u/sec. 197 Cr.P.C. it has to
be shown reasonable connection between the Act, complained of and
discharge of official duty. It is well settled that the question of sanction
u/sec. 197 of Cr.P.C. can be raised at any time after the cognizance, may be
immediately after cognizance or framing of charge or even at the time of
conclusion of trial and after conviction as well, any appeal. In Rajib Ranjan
Vs. R.Vijakumar  two judge Bench at paras 14 to 18, it is observed sanction
however is necessary if the offence alleged against the public servant is
committed by him after acting or purporting to act in the discharge of his
official duties as held in Buddi Kota Subbar Rao Vs.K.Prakasham  para-6 the
fact or omission on facts found reasonable connection that discharge of his
duty by the accused thereby sanction is required that cannot be disputed. In
Raghunath Anant Govilkar Vs. State of Maharashtra  supra referring to
Sreekantaiah and Amrik Singh supra observed if the act complained of is
concerned with official duties, sanction would be necessary and therefrom
observed if a public servant enters into a criminal conspiracy and indulges in
criminal misconduct and misdemeanor, it is not to be treated as an act in
discharge of official duty thereby in that case sanction held not necessary.
Even from Rajib Ranjan supra, the principle of law laid down of the act
complaint of no way connected to the discharge of duties, sanction is imposed
is reiterated. In Inspector of Police Vs. Battenapatla Venkateramaiah  the
three judge Bench expression of the Apex Court referring to Rajib Ranjan
supra observed the facts of that case while reiterating the principle of the
protection u/sec. 197 given to the public servant is in the public interest and
in Subramanian Swamy Vs. Manmohan Singh -it was held that the provisions
dealing with sanction u/sec. 197 of Cr.P.C. must be construed in such a
manner as to advance the cause of honesty, justice and good governance and
the para-74 therein speaks that public servants are treated as a special class
of persons enjoying the special protection so that they can perform their
duties without fear and favour and without threats of malicious prosecution.
Thus even from this Battenapatla Venkata Ratnam supra if it is connected
with the discharge of duties even there is excess sanction is required.
                19. In Om Prakash V. State of Jharkhand and Kailashpathi Singh V.
Rajiv Ranjan Singh  (common order) in relation to the encounter killings
from the attack against police, it was observed on the scope of Section 197
Cr.P.C that prior sanction is a pre-condition for taking cognizance of offences
against the police officials and there is no requirement for such accused
officials to wait till framing of charges to raise the plea.  In Sankaran Moitra
V. Sadhana Das  it was held that when police fired in defence and in
performance of their officials duties cannot be prosecuted without sanction
under Section 197 Cr.P.C and therefrom quashed the prosecution initiated
against them by the Apex Court.  In N.K.Ganguly Vs. CBI, New Delhi  though
a case under Section 19 of the P.C.Act referring to Section 197 of Cr.P.C. also
referring to the earlier three judge Bench expression of R.R. Chary Vs. State
of U.P.  on the scope of Section 197 of Cr.P.C. the word cognizance indicates
very initially of proceedings against the public servant and the three judge
Bench in Amrik singh supra held the requirement of sanction can be raised at
any stage and in Matajog Dubey supra it was held Section 197 of Cr.P.c is not
ultra vires to Article 14 of the Constitution of India, and it is imperative to
obtain sanction of the alleged offence is committed in discharge of official
duty by the accused in saying without sanction the proceedings are
unsustainable also referring to the conclusion, several expressions including
Srikanthaiah and Hori Ramsingh, a Federal Court and Satwanth Singh of
Constitutional Bench expression and Baidyanath Gupta supra in concluding
that if the application of the Cr.P.C. of also held in another Constitutional
Bench expression B.Saha supra is that the offence charged for want of
commission or omission must be one which has been committed by the public  
servant either in his official capacity or under the colour of the office held
by
him. In another recent expression of the Apex Court in Nanjappa Vs. State of
Karnataka . No doubt the case under Section 19 of P.C. Act by also referring
to several expressions including u/sec.197 of Cr.P.C. including the
Constitutional Bench expressions of B.Saha, Badrinath Tripati supra and State
of Karnataka Vs. C.Nagarajaswamy  among the others to the conclusion that
the order of acquittal on the ground of acquittal recorded by setting aside by
the High Court found fault by allowing the appeal setting aside the reversal
order of the High Court saying sanction required.
                20. In Nagarajaswamy supra it was held that when prior sanction by
competent authority is provided by statutory provision which is a sine-qua-non
for taking cognizance, ordinarily the question to be dealt with is at the stage
of taking cognizance.  Even cognizance taken erroneously, once the same
comes to the notice of the Court at a later stage finding to that effect is to
be
given by the Court.  The accused is entitled to take such plea or sanction
required at any point of time including even in hearing the appeal before the
appellate Court.  It was held that when all the mandatory requirements of the
statutory formalities not complied with, practically cognizance cannot be
taken by the Court and any cognizance taken is therefrom is unsustainable.
                22. In further saying as held in Nagarajaswamy supra and State of
Goa
Vs. Babu Thomas  for want of sanction the Court taking cognizance is
incompetent and that error was so fundamental that invalidated the
proceedings conducted by trial Court by relegating the parties to apposition
where the competent authorities could issue on appropriate order sanctioning
the prosecution. In another expression D.T.Virupakshappa Vs.C.Subhash
referring to Kumar Raghavendra Singh Vs. Ganesh Chandra Jew  of
protection u/sec.197 Cr.P.C. is to protect responsible public servant against
the institution of possibly vexatious criminal proceedings for the offences
alleged to have been committed by them while they are acting or purporting
to act as public servants. If in doing his official duty he even acted in excess
of a duty when there is reasonable connection between the act and
performance of duty, the excess will not be sufficient ground to deprive the
protection to the public servant and it was observed ultimately when police
allegedly exceeding in exercise of his power in alleging while investigating he
assailed the complainant and detained him in police station, said offence
committed is when reasonably connected with the performance of the official
duty previous sanction is mandatory and the proceedings thereby followed
vitiated in quashing the proceedings.
        23. Having regard to the above, from the above expressions referring to
the principle laid down as to when sanction is required when not, coming to
the facts of the case on hand, when it is a clear case that the accused is
discharging official duty as CEO-Principle Secretary of the Board in the
respective meetings including it is a duty to attend and record the minutes
and while the official meeting was going on including from presence of the
complainant and questioning of earlier minutes of meeting not properly drawn
and there were exchange of heated words between them and in the course
the alleged abuse taken place, it is interconnected with the discharge of
official duties with alleged excess thereby sanction is mandatory, without
which the proceedings are null and void and unsustainable and are liable to be
quashed of the cognizance taken by the learned Magistrate without adverting
to the requirement or any of the sanction and without application of judicial
mind engrafting mechanically cognizance by taken on file to allot PRC Number
to commit to the Special Court of Sessions. Apart from the above coming to
the facts further on the cognizance taken otherwise sustainable or not
concerned, the Apex Court in the expression of 5 judge Bench in Dharampal
Vs. State of Maharashtra  held that the Magistrate has a role to play while
committing a case to the Court of Sessions upon taking cognizance on the
police final report submitted u/sec.173 of Cr.P.C. read with Section 190
Cr.P.C. In the event, the Magistrate disagrees, when the police final report,
has to choice that is made to act on the basis of a protest petition that may
be filed or made, while disagreeing with the police report, to issue process
and summoning the accused.  From this, it is clear that even police filed final
referred report, Magistrate may defer with the opinion of police and can take
cognizance and going through the entire material or on even protest
application filed by the complainant may proceed to enquire into to take
cognizance or thereunder.
       24. No doubt, it is not therefrom a mere proceeding like a private
complaint case while proceeding against the accused on a protest application
even the Magistrate accepted the police referred report while proceeding on
the protest application of the accused, leave about the Magistrate by going
through the final report even deferred with the police referred report
opinion and can take cognizance. Here the Magistrate did not take
cognizance by deferring with police final referred report containing more
than 22 witnesses examined including the President of Cantonment Board
among other officials and non-officials, including Ward Members attended
public meeting whether the issue allegedly taken place. Then out of the two
options referred in Dharampal supra, one not availed by the Magistrate and
the other is to proceed on the protest application. When such is the case, the
Magistrate is bound not only simply to accept the facts referred in the
protest application and the sworn statement of protest petitioner-cum-any
other witnesses but also bound to consider earlier police referred report and
also if necessary accept any explanation impugning the investigation
including among those witnesses examined by the Investigating officer if
explained away as to they did not so state before investigating officer or
they were not even examined or of they stated not correctly reflected.
Without which,  that too, when police filed referred report outcome of
earlier crime registered is part of the Court record and it is based on report
alone, protest application is filed impugning the referred report from the
very protest raises that referred report formed part for consideration to
consider the protest against. By then the Magistrate shall have no right at all
to totally ignore the earlier investigation final referred report. From that
principle when applied to the facts here from the police final referred report
there are as many as 22 witnesses examined of whom but for one Kesava
Reddy shown sailing with the complainant and from perusal of the material is
the main person besides B.Narmada, Mallikarjuna(husband of B.Narmada)
and J.Ramakrishna whose wife is Anuradha-Board member, on investigation
material clearly shows they all got grievance apart from the others viz;
Nagaraju in sailing with the complainant, CEO wants to cancel the Toll Tax,
Octroi collection contract that was the issue also in the meeting for which he
is not accommodating them that causes loss to them from any extension of
the contract they got the grievance. In the protest application there is
nothing against the investigating officer personally attributed even to say
what is the basis for investigating officer if at all to allegedly acted is
unfairly or with any bias. On perusal being a senior officer of the D.S.P.
cadre when investigated the case in the absence of showing how the
investigating officer is not fair, the Court is bound to accept such
investigation before. No doubt by reason, the protest complainant is entitled
to point out here there is nothing basis to say investigation by the Senior
Police Officer is not fair. Here importantly several of the witnesses like
K.Ramachandra and staff reporter(among the media persons) attended,
stated there was some sudden arguments between the CEO  
Balakrishna(accused) and Ward Members Jai Prakash(complainant) and  
Krishna Reddy and other cited and Krishna Reddy and Jai Prakash raised from
their chairs by proceeding towards CEO Balakrishna by abusing him as rowdy
and they were stopped by Pratap, Venkata Rao, and Balakrishna Pointed
them for their using as rowdy in his saying he is responsible member they
have to behave as responsible members and the same was after pacified
particularly at the request of the President of the Cantonment Board Major
General K.Digvijay Singh and work was resumed and the agenda further
meeting went on peacefully and the CEO Balakrishna did not abuse in his
presence, the said Jai Prakash and another Press reporters among the media
also stated so including the District Revenue Officer, Parasani Shyam Kumar,
Member of the 7th ward of the cantonment, Panasa Venkata Rao another
Board member, A.Ashok Kumar, journalist among the press on behalf of the
TV5 news channel and Ramadugu Venkat another Press Reporter of Andhra  
Prabha, Nampally Srinivas Press Reporter of Vaartha daily newspaper,
J.Pratap, Board Member of the Cantonment, one Yogeshswamy another  
nominated Member of the cantonment, another Major General Digwijay,
President of the Cantonment Member, one Joseph M.G.Celestian so and one  
Geetha Kumari Office Superintendent supra also stated so when all they in
one voice being the independent witnesses stated that there was no any
abuse by the C.E.O. Balakrishna of Jai Prakash but for Jai Prakash and
Krishna Reddy that abused Balakrisha including addressing meeting as rowdy
for which he felt sorry for it and questioned them to behave like responsible
member of the cantonment member and he is discharging his official duties,
it clearly speaks without any such incident happened on 22.08.2011 as
pointed out rightly by the investigating officer after deliberations and
consultations with the motive behind to implicate the CEO-Balakrishna as he
is not acting to their tunes to benefit them in the Octroi and toll tax contract
extension and also in other aspects for the C.E.O. discharging his official
duties strictly as per law and procedure being a public servant, to malign him
and demeaning him and made him to tend to them if possible a distorted
version brought into existence after three days by false implication for the
first time in that report and once the investigating officer from the
independent witnesses version and also from the versions of the persons
noted in the F.I.R. among others members including attended besides the
President of the Cantonment Member and several press people mostly in one
voice stated any such instances was happened the referred report is right and
justified by the conclusions. When such is the case, the learned Magistrate by
recording 34 sworn statements of the complainant and the persons to his
tunes brought by him, taken cognizance of the case totally ignoring the
police referred report supra and none of the even independent witnesses
who categorically stated no such incidents as happened, even not examined
at least one to say the investigating officer did not record his statement or
he did so state or even he stated to the investigating office about any abuse
taken place it is not properly reflected even to defer with the investigating
officer from the so called protest to take cognizance, thereby the cognizance
taken by the learned Magistrate simply based on the few versions of the
complainant/protest petitioner and his three or four more persons which he
cited to his tunes is unsustainable and it is nothing but abuse of process by
the complainant to wreak vengeance for which the legal machinery cannot
be allowed to use and any such permission is nothing but grave abuse of
process and the inherent powers are there to prevent such abuse to subserve
the ends of justice.
        25. Having regard to the above, cognizance taken by the Magistrate per
se unsustainable for no factual foundation for the police final report with 22
witnesses with mostly about more than 15 including all independent witnesses
show any such incidents happened to believe in distorted version of the
defacto-complainant as protest petitioner in his saying in tune to his report
given after 4 days of the alleged incident and in citing three or four more
persons to support him when they have got motive behind the issue to support
the complainant as the official is not acting to their tunes to accommodate
for their extraneous gains. Further more when the act incredibly connected
with the official discharge of duty sanction is mandatory. The Apex Court in
Smt. Nagavva Vs. V.S.Kojalgi  held whether the allegations in the complaint
are highly improbable and no prudent person can believe or reach to the
conclusion to support the allegations.  It is a fit case for quashing the same
is
really by the recent expression of the Apex Court in D.T.Virupakshappa supra
where categorically held even there is excess of discharge of official duty,
sanction is mandatory in quashing the proceedings and referring to it and also
the Apex Court including Anjani Kumar Vs.State of Bihar , it was held when
complaint filed against the government official as a counterblast to the action
taken by him and when the facts show the complaint as afterthought with
deliberations roped the official in continuation of proceedings amounts to
abuse of process therefrom quashed the proceedings and for that conclusion
referred several expressions.
          26. In the result, the Criminal Petition is allowed quashing the
proceedings in Crl.M.P.No.236 of 2015 in Cr.No.154 of 2011 on the file of the
X Additional Chief Metropolitan Magistrate, Secunderabad. Consequently,
miscellaneous petitions, if any, pending in this Criminal Petition shall stand
closed.
____________________________    
Dr. B. SIVA SANKARA RAO, J  
Date:28.01.2016