*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY +WRIT PETITION No. 8694 of 2008 % Dated: 14-05-2008 # R. Mallaiah & others. Petitioners VERSUS $ The Deputy Inspector General, Nizamabad & Medak District Range, Nizamabad, Nizamabad District & others. Respondents ! Counsel for Petitioner : Mr. B. Vijaysen Reddy for Mr. M. Govind Reddy ^Counsel for the Respondents: GP for Home. <GIST: > HEAD NOTE: ? Cases referred 1. 1992 Suppl (1) SCC 335 2. (2005) 13 SCC 540 3. (2002) 6 SCC 174 4. (1988) 4 SCC 655 5. (2000) 8 SCC 115 6. (2002) 3 SCC 89 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTEENTH DAY OF MAY, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8694 of 2008 Between: R. Mallaiah & others. … Petitioners AND The Deputy Inspector General, Nizamabad & Medak District Range, Nizambad, Nizambad District & others. … Respondents Counsel for the petitioner : Sri B. Vijaysen Reddy for Sri M. Govind Reddy Counsel for the respondents: GP for Home This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8694 of 2008 ORDER:- In this writ petition, the petitioners sought for issue of a Writ of Mandamus to declare the registration of First Information Report (for short, ‘the FIR’) in Crime No.82 of 2008 of Gajwel Police Station, Gajwel Mandal and Taluq, Medak District, as illegal, arbitrary and unconstitutional. The petitioners, who are three in number, are police constables attached to Gajwel Police Station. On 08.04.2008, respondent No.6 filed a complaint before Gajwel Police Station wherein it was alleged as under: That he has taken on hire agricultural lands of B.Kishan Reddy resident of Mutrajpally Village six months back, that Sri B.Venkat Reddy son of Gopal resident of Banglavenkatapur, Laxmi wife of Venkat Reddy and Banoth Padma have been working as agricultural labourers for six months, that at 00.30 hours on 6/7.04.2008 petitioner No.1 went to the complainant’s agricultural fields in drunken condition and started abusing the labour in filthy language and beating them, that when Venkat Reddy tried to rescue the victims Padma and Laxmi, the petitioners tied him with ropes to a tree and attempted to rape both the said ladies, that when Mallikarjun Rao, the brother of the complainant and his friend Chander intervened and tried to pacify, the petitioners beat them too, threatened them with dire consequences, snatched four cell phones from them and demanded Rs.75,000/- threatening that if they give the said money they will go away, failing which, they will come back and cause harm to them, that the petitioners forcibly took a statement from the complainant’s brother that all of them are indulging in prostitution and left the place. On receipt of the complaint, respondent No.5 registered Crime No.82 of 2008 for the offences under Sections 354, 384, 324, 342 and 506 read with 34 IPC and commenced investigation. During investigation, the statements of the complainant and other witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, “the Code”) and on finding that one of the victims, namely, Banoth Padma belongs to Scheduled Tribe (Lambada), the provisions of Sections 3(1)(xi) and 8 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the 1989 Act’) were added. Consequently, investigation was entrusted to respondent No.3. At this stage, the petitioners filed the present writ petition seeking quashing of the FIR. The Circle Inspector of Police, Gajwel Circle, Medak District filed a counter- affidavit in which inter alai it is mentioned that respondent No.3, before investigation, examined and recorded the detailed statements of all the witnesses under Section 161 Cr.P.C., that they corroborated with the facts contained in the FIR and that the investigation prima facie revealed commission of offence by the petitioners and that investigation is pending for want of arrest of the accused. It is further stated that all the petitioners, who are the police constables, absented themselves from their duties and they were suspended by the disciplinary authority, namely, respondent No.2 vide his order dated 16.04.2008. It is further averred that the averments contained in the affidavit filed by the petitioners are the subject matter of investigation in the pending criminal case and that all the necessary steps are being taken to complete the investigation and file report/charge sheet before the jurisdictional Magistrate. At the hearing, Sri B. Vijaysen Reddy, learned counsel for the petitioners submitted that the allegations against the petitioners are ex facie false and registration of the criminal case on the basis of such allegations constitutes abuse of process of the Court. He further submitted that the complaint taken on its face value does not disclose commission of offence under the 1989 Act and that the FIR to the extent it relates to addition of the provisions of the said Act is liable to be quashed. He also contended that none of the alleged victims gave the complaint and that the FIR registered on the complaint given by respondent No.6 ought not to have been registered. I have carefully considered the submissions of the learned counsel for the petitioners. The law relating to the Courts’ interference with criminal investigation and quashing of criminal proceedings is well settled. I n State of Haryana and others v. Bhajan Lal and others the Supreme Court laid down broad guidelines for the High Courts to exercise their extraordinary powers under Article 226 of the Constitution of India or inherent powers under Section 482 of Cr.P.C. either to prevent abuse of the process of Court or otherwise to secure the ends of justice. It is apposite to reproduce the same hereunder: “1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156 (1) of the Code except under an order of a Magistrate within the purview of S. 155 (2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155 (2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” In State of Orissa v. Saroj Kumar Sahoo the Supreme Court, after exhaustive consideration of the case law, laid down the following propositions “1) The exercise of power under Section 482 CrPC is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. 2) While exercising the powers under Section 482 Cr.P.C., the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 3) The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which such power can be exercised can be laid down.” In A.V. Mohan Rao v. M. Kishan Rao the Supreme Court referred to its earlier judgments in State of Bihar v. Murad Ali Khan , State of Haryana v. Bhajan Lal (1 supra), Mahavir Prasad Gupta v. State of National Capital Territory of Delhi and held: “Reading of the complaint petition and the materials produced by the complainant with it in the light of provisions in the aforementioned sections, it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since any observation in that regard may affect one party or the other. The allegations made are serious in nature and relate to the Power Company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis.” In State of Karnataka v. M. Devendrappa the Supreme Court reiterated its earlier judgments and held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether an evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained and that is the function of the trial Judge. The Supreme Court further held that Courts should be circumspect and judicious in exercising discretion and the High Court, being the highest Court of the State, would normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. The Supreme Court concluded that in proceedings instituted on a complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. Having carefully considered the allegations in the complaint and the averments contained in the counter-affidavit and applying the well-settled law as discussed supra, I am of the considered view that the petitioners failed to make out a case for interference by this Court in the investigation being carried on into the criminal case pending against them. Though no specific reference is made to Section 3(1)(xi) of the 1989 Act, a reading of the allegations contained in the FIR prima facie discloses commission of such an offence. It is specifically alleged in the FIR that all the three petitioners came to the agricultural fields in an inebriated condition in the night at 12.30 and severely beat up Laxmi wife of Venkat Reddy and Banoth Padma and attempted to commit rape and outrage the modesty. In this connection, it is apt to extract Section 3(1)(xi) of the 1989 Act hereunder: “3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe – (xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty.” Thus, the allegations contained in the FIR, taken on their face value, undoubtedly constitute an offence under Section 3(1)(xi) of the 1989 Act. In the counter-affidavit filed by the Circle Inspector of Police, it is specifically averred that after recording the statements of the witnesses under Section 161 of the Code, it has come to light that one of the victims, namely, Banoth Padma is a person belonging to Scheduled Tribe and hence the FIR was altered by adding the provisions under the 1989 Act. Unless the investigation is completed and charge sheet is filed, it would not be proper for this Court to jump to the conclusion about the innocence of the petitioners. If after completion of investigation and filing of charge sheet the allegations contained in the charge sheet and the material filed in support thereof do not disclose commission of any offence, the petitioners would then be free to seek quashing of the criminal proceedings. With regard to the contention of the learned counsel for the petitioners that the complaint ought not to have been registered at the instance of respondent No.6, I find no force in the same. Respondent No.6 is the person who allegedly employed the victims in connection with his agricultural work. It cannot therefore be said that he is a person totally unconnected with the incident. Under the scheme of the Code, it is the duty of the police to act on every information relating to the commission of an offence whether cognizable or non- cognizable. In case of cognizable offence, after entering the substance of such a complaint in a book to be kept for this purpose, they are empowered to investigate into the complaint without the order of the Magistrate under Section 156 of the Code. Therefore, registration of case and commencement of investigation on the complaint given by respondent No.6 do not constitute a ground to quash the FIR. The petitioners are police constables facing very serious charges of perpetrating atrocities on hapless citizens. Apart from being of the view that they failed to satisfy the requirements laid down by the Supreme Court in the abovementioned authoritative judicial pronouncements for quashing of the FIR at this stage, I am of the further view that the petitioners, who belong to a disciplined force, facing allegations of commission of heinous crime, cannot be allowed to make a short shrift of the criminal proceedings, even at the stage of investigation, which if permitted, would further damage the sagging reputation of the police force. For the abovementioned reasons, the writ petition is dismissed. As a sequel to dismissal of the writ petition, WPMP.No.11530 of 2008 filed by the petitioners for interim relief is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 14.05.2008 ES