Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
THE HONBLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL PETITION No.12527 OF 2013
16-06-2014
S.Purnachandra Rao & another.. Petitioners/Accused
State of Andhra Pradesh rep., by its Public Prosecutor High Court of A.P. &
another .. Respondents
Counsel for the petitioners : Sri D. Purna Chandra
Reddy
Counsel for respondents : Public Prosecutor for R.1
Sri Akkam Eswar for R.2
<Gist :
>Head Note :
? Citations:
(2013) 10 Supreme Court Cases 705
2 2011 (1) ALD (Crl) 70 (AP)
3. 1999 (2) ALT 471
4. (2010) 4 SCC 785
5. (2007) 10 SCC 712
6. 2000 (1) SCC 722
7. 1981 CRI.L.J.356
8. AIR 2012 SC 521
9. AIR 1992 SC 604
10. AIR (36) 1949 Allahabad 483 (FB)
11. (1996) 11 SCC 557
HONBLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL PETITION No.12527 OF 2013
ORDER :
Questioning the order dated 09.10.2013 passed by the learned IX Additional Chief Metropolitan Magistrate, Hyderabad, wherein and whereunder, permission was granted to the police to conduct investigation for the offences punishable under Sections 504, 506 and 120-B IPC which are non-cognizable, this Criminal petition is filed under Section 482 of Criminal Procedure Code seeking quashing of the same on the ground that the said order was passed without application of mind.
The facts in issue are as under :
On 08.10.2013 at about 2.30 p.m., the Sub-Inspector of Police, Narayanaguda Police Station, received a complaint from one Musunuri Srinivasa Rao, R/o.Flat No.505, H.No. 3-6-69, Venkatarama Towers, Basheerbagh, in which he alleged that his ex-employee S. Purnachandra Rao and S.Rajesh Kiran (petitioners herein) bore grudge against him and started threatening him with dire consequences if subsequent amount was not paid to them. He also suspects movement of suspicious persons around his Office. In view of the imminent threat to his life, a report was lodged before the Narayanguda Police Station, seeking action against the culprits.
Pursuant to the said report the Sub-Inspector of Police, Narayanaguda Police, requested the IX Additional Chief Metropolitan Magistrate, Hyderabad, to accord permission to register the crime for the offences punishable under Sections 504, 506, 120 B IPC, as the above offences are non- cognizable in nature. By an order, dated 09.10.2013 the learned Magistrate accorded permission to conduct investigation for the above mentioned offences. Challenging the said order, the present application is filed.
Relying upon the Judgments of the Apex Court in Anil Kumar and Others Vs M.K. Aiyappa and another , Sajjal Agarwal Vs State of Andhra Pradesh and another , Medwin Hospitals, rep., by its M.D., B. Kameswara Rao Vs State of A.P., Pollution Control Board , Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing Kota Vs Shukla and Brothers , Union Bank of India and others Vs Jai Prakash Singh and another , the learned counsel for the petitioner strenuously contends that reasons are to be recorded showing application of mind while directing the police to investigate into the non-cognizable offences under Section 155 (2) Cr.P.C., failing which great prejudice would be caused to the accused.
Relying upon the Judgments of the Apex Court in Kanti Bhadra Shah & another Vs State of West Bengal , and Kunhumuhammed Vs State of Kerala the learned counsel for the respondent would contend that no reasons are necessary while granting permission to register a crime. According to him, the reference made under Section 156 (3) Cr.P.C., and the permission granted under Section 155 (2) Cr.P.C., are quite distinct and different in nature. He strenuously contends that reasons are required to be given while refusing to give permission to register a crime and not while granting permission to register a crime. He further submits that the impugned order shows application of mind while granting permission to register the crime and as such, the same warrants no interference from this Court under Section 482 Cr.P.C.
The point for consideration is whether the impugned order warrants interference of the Court for not giving reasons while directing the police to investigate a non-cognizable offence.
In Anil Kumar and others Vs M.K.Aiyappa and another, the Apex Court while dealing with a reference made under Section 156 (3) Cr.P.C., observed as under :
10. We may first examine whether the Magistrate, while exercising his powers under Section 156 (3) Cr.P.C., could act in a mechanical or casual manner and go on with the complaint after getting the report.
11. The scope of Section 156 (3) Cr.P.C., came up for consideration before this Court in several cases. This Court in Maksud Saiyed Case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156 (3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156 (3) or Section 200 Cr.P.C, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156 (3) CrPC, should be reflected in the order, though a detailed expression of his views, is neither required nor warranted.
From the Judgment referred to above, it is clear that the learned Magistrate, while referring the case under Section 156 (3) Cr.P.C., or while taking cognizance of the offence, should give some reasons for passing the order, though it is not necessary to pass a reasoned order.
In Medwin Hospitals, rep., by its M.D., B.
Kameswara Rao Vs State of A.P., Pollution Control Board, a learned single Judge of this Court, while considering the issue as to the nature of order to be passed while taking cognizance of the matter held as under :
There is absolutely no doubt whatsoever to hold that criminal law cannot be set in motion against an accused person in a very casual and mechanical manner. The Magistrate before taking cognizance is duty bound to meticulously peruse the contents of the complaint so as to satisfy himself that such contents do reveal the commission of offence as alleged. The question of issuing a process does not arise without the learned Magistrate forming an opinion based on the material available at the time of taking cognizance. The learned Magistrate is required to not only look into the contents of the complaint but also statement of the complainant and the witnesses, if any, examined and other material including the documents made available by the complainant. Such application of mind is a condition precedent for issuing a process against the accused. It is well settled that issuing process in a criminal case against an accused itself is fraught with serious consequence. But in my considered opinion, it is not necessary for the learned Magistrate to pass an elaborate order disclosing as to why he intends to take cognizance of a case. It would meet the requirement of law, if the proceedings on the file of the learned Magistrate would disclose the application of mind. After all, the learned Magistrate is not deciding any case at that stage. All that is required is that he has to satisfy himself that the contents of the complaint prima facie reveal the commission of the alleged offence. The learned Magistrate in the instant case passed the following order :
Perused the complaint. Case is taken on file for the offence 43 & 44 r/w.24, 25 and 26 of the Water Prevention and Control of Pollution) Act, 1974 against the accused. Issue summons against the accused. Call on 21.8.96.
The same would disclose application of mind, though it would have been advisable for the learned Magistrate to indicate that the complaint discloses the commission of the alleged offence. However, it is required to observe that the learned Magistrate could have been somewhat articulate in recording his satisfaction.
In Sajjal Aggarwal Vs State of Andhra Pradesh, a learned Judge of this Court while dealing with an issue which is identical to the case on hand held as under : It is open to the Magistrate either to grant permission or refuse to grant permission. When there is such discretion vested in the Magistrate, it is desirable that the Magistrate should give reasons for empowering a police officer to investigate a non-cognizable case, so that an aggrieved party will be in a position to question the same in higher Courts and will be in a position to know for what reasons his application is considered or not considered.
In view of the above, the learned counsel for the petitioners would submit that giving reasons, while granting permission to the police to investigate into non-cognizable offence, is mandatory.
Drawing an analogy from the Judgments of the Apex Court in Kanti Bhadra Shah and another Vs State of West Bengal, the learned counsel for the respondents submits that no reasons are required to be recorded while referring the case to the police for investigation into a non- cognizable offence. It was a case where the Apex Court dealt with Sections 239 and 245 Cr.P.C. The question before the Court was whether the reasons are to be recorded while framing a charge against the accused. Dealing with the said aspect, the Apex Court after referring to Sections 239 and 240 Cr.P.C., held as under :
10. It is pertinent to note that this section requires a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused.
Further, a reading of Sections 239 and 240 Cr.P.C., makes it clear that both the sections refer to recording of reasons only if the Magistrate considers the charge against the accused is groundless or where no case has been made out against the accused.
Therefore, the argument of the learned counsel for the respondents that reasons are to be recorded only when the Court refuses to give permission to register a crime cannot be accepted. Further, as stated above, Sections 239 and 240 Cr.P.C., speak of recording reasons while allowing the application for discharge filed by the accused.
Learned counsel for the respondents would further contend that giving reasons while referring the case to the police under Section 156 (3) Cr.P.C., is different from granting permission under Section 155 (2) Cr.P.C., for registering a non-cognizable offence. The said argument cannot be accepted for the reason that the words used in Section 156 (3) Cr.P.C., and Section 155 (2) Cr.P.C., are Order of a Magistrate and may order such investigation. It may be relevant to extract Section 155 (2) Cr.P.C. and Section 156 (3) Cr.P.C., which read as under :
Section 155: Information as to non- cognizable cases and investigation of such cases.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
Section 156: Police officer' s power to investigate cognizable case.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
A reading of the above two provisions clearly disclose that a police officer cannot initiate any action without an order of a Magistrate having power to try the case. Cause of action in both the situations arise only after an order from the Magistrate.
Neither the Criminal Procedure Code nor the Indian Penal Code define the word Order. Oxford English Dictionary, Second Edition, Vol.X defines Order as :
23.a. An authoritative directions, injunction, mandate; a command, oral or written; an instruction.
24.spc. A. Law. A decision of a court or judge, made or entered in writing ; in the Supreme Court, a direction of the court or a judge other than a final judgment.
FERDICOs Criminal Law and Justice Dictionary defines Order as under :
To issue a command or instruction. A mandate, command or direction issued by a judicial officer in exercise of judicial authority and entered in Court record.
Therefore the word Order; in Section 155 (2) and Section 156 (3) Cr.P.C., cannot be lost sight of as the same assume lot of significance. It is always said that reasons are the lifelines of an order.
Dealing with the importance of giving reasons while passing orders, the Apex Court in Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota Vs Shukla and Brothers held as under :
A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non- recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment.
Further, under Section 155 (2) Cr.P.C., it is always open to the Magistrate either to grant permission or refuse to grant permission. When such a discretion is vested in the Magistrate, it is desirable that the Magistrate shall give reasons while empowering the police officer to investigate into a non-cognizable offence, so that the aggrieved person will be in a position to know the reason for acceptance or rejection of his application, otherwise there is every possibility of misuse of Section 155 (2) Cr.P.C. In case such a power is given to a police officer, he may misuse his official position and harass the accused person (Sajjal Aggarwal Vs State of Andhra Pradesh).
In Tilaknagar Industries Ltd., and Others Vs State of A.P., and another , State of Haryana and Others Vs Bhajan Lal and Others , the Apex Court held that the statutory safeguard given under Section 155 (2) Cr.P.C., of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexacious investigation.
A Full bench of Allahabad High Court in Shyam Lal Sharma Vs King Emperor , held as under :
Section 155 Cr.P.C., occurs in Chapter XIV of the Code, which deals with investigation of the offence. It makes a marked distinction between cognizable and non-cognizable offences. It authorizes police officer incharge of a police station to investigate the cognizable offence without the order of a Magistrate, but forbids the police officer from investigating a non-cognizable case unless, ordered by a Magistrate to do so. Section 155 (2) Cr.P.C., shall deal with this matter and reads thus :
No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class, having power to try such case or commit the same for trial, or of a presidency Magistrate.
It is evident that it was intended by this piece of legislation that a non-cognizable offence could not be investigated by the police unless, the Criminal Court possessed of necessary jurisdiction, is moved by a complainant to take cognizance of the offence or unless a Magistrate of the description mentioned in the Section, considers it desirable that the offence should be investigated, the Section occurs in a statute dealing with administration of criminal justice which is administered in public interest and not in the interest of any private individual. It could not have been intended, therefore, that a Magistrate should order the investigation arbitrarily or capriciously. On the other hand, it may be legitimately assumed that it was intended that before making the order of investigation, he would carefully consider all the relevant circumstances, that make it desirable that a non-cognizable offence should be investigated in public interest.
From the above, it is clear that the Magistrate while either referring the case to the police under Section 156 (3) Cr.P.C., or while ordering investigation into a non-cognizable offence under Section 155 (2) Cr.P.C.,, has to show application of mind to the facts of the case. It may not be necessary for the Magistrate to pass a reasoned order. The order under reference or order directing registration of a non- cognizable offence should contain some information showing application of mind to the case on hand.
At this stage, learned counsel for the respondents strenuously contends that no prejudice would be caused to the accused even if the police investigate into a non- cognizable offence, and file charge sheet without an order from the competent Magistrate. In support of the same, he relies upon a Judgment of the Apex Court reported in Keshav Lal Thakur Vs State of Bihar . It was a case where the police registered a case under Section 31 of the Representation of the People Act and after completing investigation filed a final report. An application for discharge was filed on the ground that the offence is a non-cognizable one. Since the Court took cognizance of matter, an application under Section 482 Cr.P.C., was filed before Patna High Court contending that taking cognizance was beyond the period of investigation. However, the Apex Court considered the competency of police to investigate and file final report in a non-cognizable offence. While holding that offence under Section 31 of the Representation of the People Act, as non- cognizable, held that neither the police could investigate into the offence nor submit a report. However held that in view of Section 2 (d)Cr.P.C., which defines complaint, the police can file final report relating to af non-cognizable offence, but the same has to be treated as a complaint of a police officer concerned. But that explanation will not be available to the prosecution where the police initiates investigation into a cognizable offence and files charge sheet for non-cognizable offence.
The situation on hand is totally different. The case is still at the inception and no final report has been filed. Therefore, the principles in the above case will not apply to the case on hand.
The argument of the learned counsel for the respondents that the order dated 09.10.2013 show application of mind, and that the same warrants no interference from the Court cannot be accepted. It would be relevant to extract the order dated 09.10.2013 which reads as under :
You are hereby accorded permission to conduct investigation under Section 504, 506 (II), 120 (B) IPC on the report given by Musunuri Srinivasa Rao, R/o.Flat No.505, 3-6-69, Venkataramana Towers, Basheerbagh, Hyderabad and filed report.
The said order only refers to according permission to conduct investigation on the basis of the report given by one Srinivas Rao. It does not reflect anything more than lodging of a report. Therefore, it cannot be said that the impugned order was passed by the Magistrate after applying his mind to the facts of the case. It appears to be a case where the learned Magistrate in a routine manner accorded permission for registration of a crime and investigation of the case.
For the aforesaid reasons, this Court is of the view that the order under challenge has been passed without assigning any reasons and the same deserves to be set aside.
Accordingly, the order dated 09.10.2013 passed by the IX Additional Chief Metropolitan Magistrate, Hyderabad, is set aside and the matter is remanded back to the concerned Magistrate directing him to pass an order showing application of mind to the facts in issue while referring the case to police for investigation into a non-cognizable offence.
Consequently, the Criminal Miscellaneous Petitions, pending, if any, in this Criminal Petition shall stand closed. __________________________ C. PRAVEEN KUMAR, J.
Date:16-06-2014.