IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE TWENTYIETH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL PETITION NO. 4365 OF 2010 Between: Mutharaju Satyanarayana Rao … Petitioner-A2 V/s The State of A.P. Represented by its Public Prosecutor & 2-Ors. … Respondents Counsel for the Petitioner : Sri Ch. Ramana Counsel for the Respondents : Addl.Public Prosecutor THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL PETITION NO. 4365 OF 2010 O R D E R : This Criminal Petition is filed under section 482 Cr.P.C., seeking to set aside the order dated 30-06-2006 taking cognizance by the learned II-Additional Judicial Magistrate of First Class, Ongole, passed in CC.No. 137 of 1999 and the order of committal dated 07- 07-2009 in PRC.No. 18 of 2006 as illegal, arbitrary, erroneous and contrary to the directions of the Hon’ble Supreme Court in Criminal Appeal No. 359 of 1999, dated 17-04-1997 and also to quash the entire consequential proceedings including that of SC.No. 1 of 2010 on the file of the Court of Principal District and Sessions Judge, Prakasam district at Ongole. 2. I have heard the learned counsel appearing for the petitioner-A2 and the learned Additional Public Prosecutor representing the State. 3. The brief facts of the case are as follows: On 26-4-1985 at about 09:30 p.m., one Angadi Prabhakara Rao, aged about 22 years, resident of Adinarayanapuram, Chirala died on the intervening night of 26/27-04-1985 while he was in the lock up of Chirala Town Police Station. The investigation was conducted into the offence alleged against the petitioner and some other accused. The Government of Andhra Pradesh appointed Commission of Enquiry under the Commission of Enquiry Act, 1952 appointing the retired District Judge, Sri M.Sriramulu, as sole Member of the Commission. The entire investigation was conducted in the present case from time to time. A final report was filed to the effect that the petitioner and other accused have not been involved in the commission of offence and also stating therein that Angadi Prabhakara Rao died natural death and there was no material to show that either he or his men were beaten or tortured by the police on the intervening night of 26/27-04-1985. However, the Chief Secretary to the Government basing on the finding of the report of the Commission of Enquiry directed to file charge sheet. The police filed charge sheet. Feeling aggrieved, the petitioner herein (A-2) and other accused filed WP.No.17150 of 1991 seeking to quash the proceedings in PRC.No. 18 of 1989, which was filed pursuant to the orders of the Chief Secretary to the Government. In the said writ petition, the petitioner and other accused contended that the Chief Secretary to the Government cannot direct the police to file charge sheet basing on the report of the Commission of Enquiry and that the Chief Secretary acted contrary to the provisions of the Code of Criminal Procedure. The contention was accepted by the Division Bench of this High Court and WP.No. 17150 of 1991 was allowed and the entire proceedings in PRC.No. 18 of 1989 were quashed. Aggrieved by the said order of the Division Bench, A. Yesobu and others filed appeal before the Hon’ble Supreme Court in Criminal Appeal No. 359 of 1999 and the Hon’ble Supreme Court allowed the appeal on merits by order dated 19-8-2004 and the order reads as hereunder: “ Now the learned Magistrate shall apply his mind to the police report which is the form of charge sheet, case diary and any other material collected by the police during the course of investigation and thereafter consider whether it is a case for taking cognizance and summoning the accused persons. It is clarified that we should not be misunderstood to have expressed any opinion, one way or the other, in relation to merit of the matter as the same is a matter to be examined by the Magistrate”. It is also relevant to mention in this context that the Hon’ble Supreme Court by its order in the above said appeal dismissed WP.No. 17150 of 1991. Subsequent to the order passed by the Hon’ble Supreme Court, the learned II-Additional Judicial Magistrate of First Class, Ongole, took cognizance of the offence and subsequently committed the PRC to the Court of Session, Sessions Division, Ongole, on the ground that the case is exclusively triable by the Court of Session. 3. The learned counsel appearing for the petitioner now contends in the present Criminal Petition that the learned Magistrate did not follow the directions issued by the Hon’ble Supreme Court in Criminal Appeal No. 359 of 1999 and took cognizance of the offence without application of mind and further the learned Magistrate also committed the case to the Court of Session, which is now pending as SC.No.1 of 2010 on the file of the Court of Principal Sessions Judge, Ongole and the procedure adopted by the learned Magistrate ignoring the directions of the Hon’ble Supreme Court is illegal, and therefore, the orders taking cognizance, committing the case to the Court of Session, Sessions Division, which is now pending before the learned Principal Sessions Judge, Ongole are liable to be quashed. 4. This is not possible for this Court to accede to the said contention. The Hon’ble Supreme Court by dismissing WP.No. 17150 of 1991 (Before the Division Bench) held that if at all there is any material, the learned Magistrate concerned can examine the same and take a decision whether cognizance can be taken or not ? The Hon’ble Supreme Court also made it clear that it shall not be misunderstood to have expressed any opinion, one way or the other and directed the Magistrate to take decision independently. While taking cognizance of the offence or passing the order of committal, the Magistrate is not required to write an elaborate order. If it appears that an order is passed after considering the material before the learned Magistrate, the impugned order is sufficient for the purpose of taking cognizance of the offence. While committing the case to the Court of Session, the Magistrate has to find out only as to whether it appears that the case is exclusively triable by the Court of Session, the Magistrate is not at all concerned with the merits of the case. He cannot evaluate the material. Now the case is pending as SC.No.1 of 2010 on the file of the Court of Principal Sessions Judge, Ongole. 5. It is also brought to the notice of this Court by the learned counsel for the petitioner that the petitioner and others have filed an application seeking to discharge and it is pending before the learned Principal Sessions Judge, Ongole. While hearing the said application, the learned Principal Sessions Judge can take into consideration the entire material placed before him before passing any order on the petition filed by the petitioner seeking discharge. However, while exercising the powers under section 482 of the Code of Criminal Procedure, this Court cannot make any meticulous examination or roving enquiry into the order passed by the learned Magistrate, cannot indulge in appreciating the merits of the facts borne out from the record for the purpose of quashing the proceedings as prayed for. Further more, the Division Bench of this High Court already quashed PRC.No. 18 of 1989 by its order in WP.No. 17150 of 1991 and the said order was set aside by the Supreme Court in Criminal Appeal No. 359 of 1999, under the circumstances, this Court is not supposed to again quash the proceedings on the premise that the learned Magistrate has not considered the entire material while taking cognizance of the offence and also committing the case to the Court of Session. Since the matter is now pending before the Principal Sessions Judge, Ongole for trial, the only course open to the petitioner and the other accused is to seek appropriate remedies which are provided under the Code of Criminal Procedure relating to Sessions trial. 6. For the reasons aforementioned, the Criminal Petition is dismissed at the threshold. 7. It is also made clear that the learned Principal Sessions Judge, Ongole, while disposing of the petition seeking discharge or trying the offence shall not be influenced by any of the observations made in this Criminal Petition and shall independently deal with the issue on merits and in accordance with law. JUSTICE R.KANTHA RAO 20/10/2010 I s L THE HONOURABLE SRI JUSTICE R..KANTHA RAO CRIMINAL PETITION NO. 4365 OF 2010 20-10-2010 I s L