Dharmavarapu Prasad vs State of A.P.

Smt. Anis, J.—This petition is filed by the petitioners/ accused Nos. 1 and 3 to 6 seeking stay of all further proceedings in C.C.No. 121 of 2008 on the file of the I Additional Judicial Magistrate of I class, Srikakulam, including appearance of the petitioners pending disposal of the Criminal Petition No. 14140 of 2016.

The learned counsel for the petitioners argued that to launch prosecution tinder Section 186 of the Indian Penal Code, 1860 (for short �I.P.C.�), there is a bar contemplated under Section 195 of the Code of Criminal Procedure, 1973 (for short, �Cr.P.C.�) unless and until a complaint is filed as defined under Section 2(d) Cr.P.C. It is further argued that the offence under Section 506 IPC is a non-cognisable one and the police are not vested with the powers to investigate the offence under Section 506 IPC unless the offence is one under cognisable as per First Schedule of Cr.P.C., and prayed the Court to grant limited stay in C.C.No. 121 of 2008 on the file of the I Additional Judicial Magistrate of I class, Srikakulam.

It is further argued that proceedings against the petitioners are an abuse of process of law and the investigation has been conducted without any power of jurisdiction and filing of the charge sheet is untenable and is unwarranted, and prayed the Court to dispense with the appearance of the petitioners before the trial Court pending disposal of Criminal Petition No. 14140 of 2016.

The learned counsel relied on a case-law reported in Paiaavula Keshavuiu v. State of A.P. and another (I) 2016 (2) ALT (Crl.) 74 (A.P.), wherein this Court held as follows:

"Section 195 of the Cr.P.C., lays down that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate."

The learned counsel further relied on a case-law reported in Daulat Rum v. State of Punjab (2) AIR 1962 SC 1206(1), wherein the Hon�ble Supreme Court held as follows:

"Now the offence under Section 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always by taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence tinder that Section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case."

The learned counsel also relied on a case-law reported in Juvvadi Raghu and others v. State and another (3) 2006 (3) ALT (Crl.) 167 (A.P.) = 2006 (2) ALD (Crl.) 634 (AP), wherein this Court held at Para 5 as follows:

"As per Section 155 Cr.P.C., if information regarding non-cognisable offences is given to an officer in-charge of a police station, he has to enter the substance of that information in a book to be kept in the form prescribed by the State Government, and refer the informant to the Magistrate. In this case, there is nothing on record to show that the police followed such procedure and obtained permission from the Magistrate to investigate into the case. Therefore, police taking cognizance and investigating into a non-cognisable offence without the permission of the Magistrate, is wholly contrary to the provisions of Cr.P.C. and is vitiated. Therefore, the proceedings against the accused in C.C.No. 157 of 2005 are liable to be quashed and accordingly the same are hereby quashed."

On the other hand, the learned Public Prosecutor argued that basing on a report given by Amin working in the Principal Junior Civil Judge�s Court Srikakulam, a complaint was registered against the petitioners in Crimes No. 298 of 2007 for the offences punishable under Sections 186 and 506 IPC., therefore the arguments of the learned counsel for the petitioners have no bearing in this case. It is further argued that after investigation is completed, the police filed the charge sheet and the Magistrate Court numbered the case as C.C.No. 121 of 2008 and it is pending disposal of the case. It is also argued that the contentions raised by the learned counsel for the petitioners can be decided by the trial Court and the petitioners waited for nine long years and filed the present petition, and therefore, prayed the Court to dismiss the petition.

Now, the point for determination is-

Whether the petitioners have made out any valid or sufficient grounds for staying the proceedings in C.C.No. 121 of 2008 including their appearance before the trial Court as prayed for?

Point:

A perusal of the record shows that basing on a report given by Amin working in the Court of Junior Civil Judge, Srikakulam, which was forwarded by the Junior Civil Judge, Srikakula, and the same was registered by the police in Crime No. 298 of 2007 for the offence punishable under Sections 186 and 506 r/w. 34 IPC against the petitioners. After conducting investigation, the Investigating Officer filed the charge sheet and the matter is coming up for trial in C.C.No. 121 of 2008. After lapse of nine long years, the petitioners 2 to 5 who are the advocates and petitioner No. 1 against whom a decree was passed in O.S.No. 84 of 1973, filed the Criminal Petition No. 14140 of 2016 for quashing the proceedings in C.C.No. 121 of 2008 on the file of the I Additional Judicial Magistrate of I Class, Srikakulam. Along with the said petition, Cr.M.P.No. 15971 of 2016 filed for grant of stay of further proceedings in C.C.No. 121 of 2008.

The main contention of the petitioners is that to launch prosecution against the accused under Section 186 IPC, there is a bar contemplated under Section 195 Cr.P.C. until and unless a complaint is filed as defined tinder Section 2(d) Cr.P.C. However, a perusal of the Andhra Pradesh State amendment vide G.O.Ms.No. 732 Home (Court-B), dated 5th December, 1991, the offence under Section 186 is cognisable, therefore, as per sub-section (4) of Section 155 Cr.P.C., the present case shall be deemed to be a cognisable case notwithstanding that Section 506 IPC is a non-cognisable one. Further, as per clause (a) to sub-section (1) of Section 195 Cr.P.C. no Court shall take cognizance of any offence punishable under Sections 172 to 188 IPC except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is administratively subordinate.

In the present case, when Amin of the Junior Civil Judge�s Court, Srikakulam gave a complaint in writing to his superior officer i.e. Junior Civil Judge, Srikakulam and in turn the Junior Civil Judge, Srikakulam endorsed the same by forwarding the said complaint to the police for investigation. The case-law relied on by the learned counsel for the petitioners in Paiaavula Keshavulu''s case (1 supra) supports the case of prosecution wherein this Court clearly stated that Section 195 Cr.P.C. lays down that no Court shall take cognizance of any offence punishable under Sections 172 to 188 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, Amin of the Junior Civil Judge�s Court, Srikakulam is subordinate to Junior Civil Judge, Srikakulam, who in turn forwarded the said complaint to the police for investigation. The police, after completing the investigation, filed the charge sheet in the Court of the I Additional Judicial Magistrate of I Class, Srikakulam. Therefore, the contention of the petitioners that there is a bar contemplated under Section 195 Cr.P.C., cannot be looked into.

Further, the contention of the learned counsel for the petitioners that Section 506 IPC is a non-cognisable one and the police are not vested with the powers to investigate the matter, also cannot be accepted in view of State amendment to Section 186 IPC as stated supra. Further, the petitioners have approached this Court after long lapse of nine years when the matter is ripened for trial. Further, the petitioners have not made out any case for grant of stay.

The other relied claimed by the petitioners is to dispense with their appearance in C.C.No. 121 of 2008 pending disposal of the Criminal Petition. It is no doubt that petitioners 2 to 5 are the advocates practicing in the same Court i.e., trial Court. Hence, the presence of the Petitioners 2 to 5, who are the accused Nos. 3 to 6 in C.C.No. 121 of 2008 on the file of the I Additional Judicial Magistrate of I Class, Srikakulam, is hereby dispensed with on each and every adjournment before the trial Court till the disposal of Criminal Petition No. 14140 of 2016 before this Court. However, they shall appear before the trial Court as and when their presence is so required.

With the above observation, the Criminal Miscellaneous Petition is disposed of.