* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + CRIMINAL PETITION No.6237 of 2008 % Dated 11.06.2010 # Srinivas Rao, S/o. Govardhan Rao, Aged about 48 years, Occ: Agriculture R/o.Solipoor Village, Farooqnagar Mandal, Mahbubnagar District …Petitio V. $ State of Andhra Pradesh Through P.S.Shadnagar Rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Responde ! Counsel for the petitioner: A.Narasimha Reddy ^ Counsel for the Respondents: Public Prosecutor for R1 N.Naveen Kumar for R2 < Gist : > Head Note: ? Cases Referred: 1 (2007) 11 Supreme Court Cases 297 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION No.6237 of 2008 Dated:- 11th June, 2010 Between: Srinivas Rao …Petitioner / Accused AND The State of A.P. and another …Respondents / Complainants THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION No.6237 of 2008 ORDER:- This Criminal Petition, under Section 482 Cr.P.C., is filed by the petitioner to quash proceedings in FIR No.416 of 2008 on the file of the P.S.Shadnagar, Mahbubnagar District. Earlier this petition was dismissed for default / non-prosecution. Now an application has been filed to restore the same. It is always better if the matters are disposed of on merits rather than on technicalities. However, the settled legal position is that whenever an application to set aside the dismissal order is filed, the main case should be heard and disposed of and the matter should not be restored and posted to some other date for further hearing. The Apex Court, in case between Madhumilan Syntex Ltd., and others Vs. Union of India and another[1], observed as follows:- “Normally, when the matter is called out and the advocate is absent, a court may adjourn the matter to next date of hearing. But it may also dismiss the matter for default so as to secure appearance of the advocate. He may apply for restoration of the case either by written application or by oral prayer and the Court may restore it asking him o argue the case so that an appropriate order may be passed on merits. Appearance of a party or his advocate and prayer for recalling an order of dismissal for default may be a good ground for restoring the matter but it cannot be said to be a good ground for restoration of the matter for hearing in future.” The learned counsel for the petitioner submits that a false complaint has been lodged against the petitioner by one Vislavath Ramjee Naik and that the allegations therein are utterly false. It is also submitted that even if the contents of the FIR are taken as true, they do not constitute any offence under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities) Act, 1989 (for short, ‘the Act’). It is also submitted that though the alleged offences took place on 19.09.2008, the complaint was lodged after three days i.e. on 22.09.2008. It is also submitted that if the petitioner is arrested, he will be put to gross and irreparable loss. Per contra, learned counsel for the second respondent / de- facto complainant submits that on 15.10.2006 itself, the petitioner herein, having received consideration, executed an agreement of sale in favour of second respondent and further agreed to take steps to see that the Patta is transferred in the name of the second respondent and having taken huge consideration, the petitioner was postponing the execution of registered sale deed through the original pattadar and on 18.09.2008, when the second respondent approached the petitioner, the petitioner abused him in the name of his caste and also abused his wife. It is also alleged that the petitioner also went to the land where the second respondent was cultivating his land and threatened to kill him if he continues to cultivate the land. It is also his submission that the truth or otherwise of the allegations cannot be determined in these quash proceedings and there is nothing on record to show that a prima facie case has been made out. His main submission is that not only offence punishable under Section 3(1)(x) of the Act, but also offences punishable under Sections 3(1)(v) and 3(1)(xv) of the act have also been made out against the petitioner. It is also his case that offences punishable under Sections 420 and 406 IPC have been made out against the petitioner. Heard the learned counsel on record. The only point that arises for consideration is whether there are any grounds to quash the proceedings. It is a settled law that while exercising powers under Section 482 Cr.P.C., the High Court cannot decide the question whether the allegations made in the complaint are true or false. The High Court also cannot quash the proceedings merely on the ground of delay in lodging complaint to the police. Now, we have to see whether the contents of the FIR, even if taken as true, prima facie make out any case, as alleged by the complainant. The settled legal position is that if the allegations made in the complaint or in the charge sheet do not make out any case or the ingredients of the alleged offences are not made out, then only the High Court may exercise its discretionary powers under Section 482 Cr.P.C. In view of the same, we have to see what are the specific allegations made by the second respondent / de-facto complainant in this case. As seen from the contents of the complaint made, the second respondent – Vislavath Ramjee Naik is resident of Rangapur Village, Kothur Mandal, Mahbubnagar District. He has been living in that village since twenty years and doing agriculture by cultivating nine acres of land in Survey No.76 situated on the outskirts of the Kammadanam Village of Farukhnagar Mandal. The petitioner herein – Srinivasa Rao is resident of Salipur Village, Farukh Nagar Mandal. It is alleged that the petitioner made a promise that he will approach the original Pattadar – Harsha Vardhan Reddy (Dora) and see that the Patta (the land) stands transferred in the name of second respondent. In 2006, Patta in respect of six acres of land has been transferred in the name of the second respondent / de-facto complainant. As far as the remaining portion is concerned, it is alleged that the petitioner herein has collected an amount of Rs.9.00 lakhs from the second respondent promising to see that the Patta stands transferred in his name. The specific case of the second respondent / de-facto complainant is that after paying the amount, he approached the petitioner several times but the petitioner herein was postponing the same on one pretext or the other. His specific case is that on 18.08.2008, when he approached the petitioner along with his wife, the petitioner is alleged to have abused him in the name of his caste and also abused his wife in most unparliamentary language. It is also alleged that the petitioner threatened the second respondent, while he was cultivating his land and threatened him to dispossess him from the land which he was cultivating. It is also alleged that the petitioner got transferred Patta of the land in his name by cheating the second respondent / de-facto complainant. The specific case of the second respondent is that there is a hut, cattle shed and two motors fixed to the well and that there is maize and paddy crop on the land. The learned counsel for the petitioner has filed xerox copies of the agreement of sale dated 24.12.2002 to show that the original Pattadar – Harsha Vardhan Reddy has entered into an agreement of sale in respect of five acres of land in Kammadanam Village, Farooqnagar Mandal, Mahbubnagar District with one V.Bikshapathi, S/o. Ramji. He has also filed a sale deed dated 27.09.2006 in support of his contention that the original Pattadar – Harsha Vardhan Reddy sold Acs.3.33 Guntas of land in Survey No.76 in favour of one Srinivas Rao. It is also his contention that six acres of land in Survey No. 76 was sold in favour of G.V.Ramana Rao through sale deed dated 27.09.2006. His main contention is that the above referred documents go to show that the original pattadar has sold the lands. He has also filed the Survey documents i.e. one receipt said to have been executed by V.Bikshapathi showing the payment made to the original pattadar – Harsha Vardhan Reddy and also one Pattadar Passbook issued in favour of G.Srinivasa Rao, the petitioner herein. Learned counsel for the second respondent has also referred to the Survey documents, i.e. agreement of sale executed by the original Pattadar – Harsha Vardhan Reddy in favour of the second respondent herein showing that he had received about Rs.8.00 lakhs through G.Srinivasa Rao, the petitioner herein, and that he will execute a sale deed and get it registered within fourty five days after the receipt of the remaining Rs.1.00 lakh. This agreement of sale is dated 15.10.1996 in respect of Survey No.76 of Kammadanam Village, Farooqnagar Mandal, Mahbubnagar District. He has also filed copy of the Rythu Passbook which shows that an extent of three acres of land each was purchased by his wife – Vislavath Sathyamma and son – Vislavath Bikishapathi (six acres in total) and that the patta of the land also stands transferred in their favour. Be that as it may, the settled legal position is that the documents filed by the petitioner or the second respondent herein cannot be considered at this stage. The truth or otherwise of the allegations also cannot be gone into. The only point that arises for consideration is whether a reading of the complaint prima facie discloses any offence or not. Of course, the police, Shadnagar registered a case in Crime No.416 of 2008 against the petitioner herein for the offences punishable under Section 3(1)(x) of the Act. Though the other penal sections of law have not been mentioned in the FIR, after filing of the charge sheet or the final report, as the case may be, considering the allegations made in the charge sheet, the learned Magistrate may take cognizance of the offences which seems to have been made out from the contents of the charge sheet. It is not necessary that the learned Magistrate should accept what all has been stated by the police with regard to the sections of law. The Magistrate shall have to apply his mind and take cognizance of the offences which appears to have been committed by the accused in a criminal case considering the specific allegations made against the accused in the charge-sheet. Be that as it is, Sections 3(1)(v), 3(1)(x) and 3(1)(xv) of the Act, reads as follows:- 3(1)(v). wrongfully dispossess a member of Schedule Caste or a Scheduled Tribe from his land or premises or interfered with the enjoyment of his rights over any land, premises or water; 3(1)(x). intentionally insults or intimidates with intent to humiliate a member of Scheduled Caste or a Scheduled Tribe in any place within public view; 3(1)(xv). forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence. Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years or with fine. On a reading of the contents of the complaint, at present it appears that there are some disputes with regard to the purchase of land. But now, it cannot be said that no prima facie case has been made out against the petitioner herein at this stage. Whether the petitioner has abused the second respondent / de-facto complainant and his wife in public place or not, whether such abuse constitutes offence punishable under Section 3(1)(x) of the Act or not, whether the petitioner has trespassed into the cattle shed and house of the second respondent / de-facto complainant or not and whether he has threatened the second respondent / de-facto complainant to dispossess him from his land which is in his possession or not, cannot be decided in this petition filed under Section 482 Cr.P.C. Hence, I am of the view that it is not the stage to interfere with the investigation. In view of the above, I hold that the criminal petition is devoid of merits and is liable to be dismissed. Accordingly, the Criminal Petition is dismissed. _______________________________ JUSTICE B.CHANDRA KUMAR June 11, 2010 Bvv [1] (2007) 11 Supreme Court Cases 297