IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 21556 of 2002 BETWEEN: Dr. R. Naryana S/o Late Narsaiah, 13-2-13/1, Opp Bus Stand, Bridge Road, Bhadrachalam, Khammam District. ... PETITIONER AND 1 Government of A.P., rep by its Secretary, Home Department, AP, Secretariat, Hyderabad. 2 Sri Sashibhusan Kumar, Project Officer, ITDA, Bhadrachlam, Khammam District. 3 Sri Gulzar, Sub-Divisional Magistrate, Bhadrachlam, Khammam District. 4 The SHO, Bhadrachalam Town Police Station, Bhadrachalam, Khammam District. 5 The Director, Department of Medical & Health, Govt of A.P., Hyd. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly one in the nature of mandamus declaring the action of the respondents as illegal, arbitrary contrary to the Criminal procedure code & unconstitutional & consequently set aside the FIR No.165 dated 24-10-02 of Bhadrachalam Town Police station and pass such other order or orders. Counsel for the Petitioner: MR.SRINIVASA RAO BODDULURI Counsel for the Respondents: GP FOR HOME The Court made the following: ORDER: Petitioner seeks a Writ of Mandamus to declare the action of the respondents as illegal and arbitrary and contrary to the Criminal Procedure Code and unconstitutional and to set aside FIR.No.165 dated 24.10.2002 of Bhadrachalam Town Police Station. 2. Petitioner submits that he studied MBBS and also completed Diploma course in Ophthalmology and he left a lucrative private practice and joined the Government service as Civil Assistant Surgeon on 20.11.1989 and intentionally opted for a posting in the tribal area. In 1995 he was posted to the Leprosy Control Unit, Area Hospital, Bhadrachalam, as a Medical Officer and was also kept in charge of the office of the Deputy District Medical and Health Officer, Bhadrachalam Division, as a medical officer of the cadre of Civil Surgeon was yet to be posted in the said office. While so, the Project Officer, ITDA, Bhadrachalam, who is the Officer of a different Department and is administratively not concerned with his job is inimically disposed towards him and has been bent upon harming him for the reasons that he did not prepare a report in accordance with his wishes regarding one Dr. Ram Mohan Rao, Medical Officer, Kunavaram, as the said doctor failed to discharge his duties with regard to snake biting of two children of Narsingapeta Residential School, which led to protests. The District authorities wanted to shift the focus of non-availability of life saving medical necessities in remote tribal areas and as part of the said plan, the second respondent wanted him to enquire and submit a report fixing the responsibility on the said doctor. It is stated that when the petitioner was having dinner on 23.10.2002, the respondents 2 and 3 barged into barged into his house and seized his letterheads and took videograph of his chambers and threatened him to be implicated in some or other case. 3. Petitioner further submits that the second respondent immediately summoned the fourth respondent/Station House Officer and asked him to arrest him. However, the fourth respondent did not arrest him. It is stated that he has not committed any offence under Section 188 of Indian Penal Code and that the third respondent by order dated 24.10.2002 in Crl.MP.No.167of 2002 stated that he has taken cognizance of the complaint filed by the second respondent under Section 190(i)(a) of Cr.P.C (old) and directed the fourth respondent to file FIR and investigate into the matter as per law for alleged offence under Section 168 IPC. 3. Petitioner further submits that if the third respondent has got any powers under the old Cr.P.C. it is as well open to him to take cognizance and issue summons, warrants bailable or non-bailable, but having taken cognizance, he cannot again file a complaint before the concerned SHO asking him to file FIR and arrest the petitioner. He further submits that the said order dated 24.10.2002 is neither an order passed exercising his powers as Sub-Divisional Magistrate under the old Cr.P.C. nor a complaint filed under Section 156(3) Cr.P.C. The contents of the said order are in conflict, as in the first Para he says that he has taken cognizance and in the last Para he directs the SHO to file FIR and investigate the matter. 4. Though serious allegations have been made against respondents 2 and 3 no counters are forthcoming from them disputing or denying the allegations. The fourth respondent alone filed a counter stating that the second respondent filed a complaint before the third respondent and on the said complaint the third respondent passed an order dated 24.10.2002 in Crl.MP.No.167 of 2002 forwarding the said complaint directing him to file FIR and investigate the matter as per law. Accordingly, FIR No.165 of 2002 was registered under Section 168 IPC. 5. The facts are not in dispute. The order in Crl.MP.No.167 of 2002 passed by the Sub-Divisional Magistrate (Mobile Court), Bhadrachalam, on 24.10.2002 reads as follows: “IN THE COURT OF THE SUB-DIVISIONAL MAGISTRATE (MOBILE COURT) BHADRACHALAM Present: Sri Gulzar. N, IAS Crl.M.P.No.167/2002 (Dated the twenty fourth day of October Month of Two Thousand Two) To The Station House Officer Bhadrachalam (Town) The Project Officer, ITDA, Bhadrachalam has filed a complaint against the accused Dr. R. Narayana, for an offence under Section 168 IPC and also produced the documents and materials seized before this Court. I have taken cognizance of the complain filed by the Project Officer, I.T.D.A., Bhadrachalam u/s 190 (i)(a) Cr.P.C. (Old) for an offence punishable under Section 168 OPC and directed you to arrest the accused. I am transmitting the complaint and the material evidence seized. In the circumstances, you are hereby directed to file F.I.R and investigate into the matter as per law. Encl: 1. Complaint filed by PO, ITDA, Bhadrachalam 2. Packet – 1 containing 2 Prescription slip pads and one videocassette 3. Packet – 2 containing keys of the doctors chambers. Sd/- SUB DIVISIONAL MAGISTRATE BHADRACHALAM” 6. A perusal of the said proceedings goes to show that it is not an order but the third respondent addressed the same to the fourth respondent that he has received the complaint from the second respondent for the offence under Section 168 IPC and he has taken cognizance and he is transmitting the complaint and material evidence seized to the SHO directing him to file FIR and investigate into the matter as per law. If the third respondent is exercising magisterial powers, the question of filing a complaint before the Police Officer does not arise; a Magistrate cannot be a complainant as well as a Judge. While exercising the magisterial powers he can as well exercise the powers vested in him under the relevant provisions of the old Cr.P.C. Having exercised the magisterial powers, he cannot file a further complaint directing the police to register a case and investigate the matter as per law. Therefore, on a complaint filed by the second respondent, the third respondent having taken cognizance cannot further make a complaint before the concerned police. Therefore, the whole action of the respondents 2 to 4 is illegal and unconstitutional. The writ petition is accordingly allowed quashing the FIR.No.165 dated 24.10.2002 registered by the fourth respondent. There shall be no order as to costs. ______________ V. ESWARAIAH, J April 16, 2008 DSK