HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.19872 OF 2009 DATE:13.07.2010 Between: B. Shashidhar …… Petitioner. And: The State of A.P., rep. by Public Prosecutor, High Court of AP., Hyderabad and8 others …..Respondents. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.19872 OF 2009 ORDER: 1. The petitioner is husband of the 9th respondent. On report given by the 9th respondent, Chatrinaka police (3rd respondent) registered case in Crime No.275 of 2006 for offences punishable under Sections 307, 498-A IPC and Sections 4 and 6 of the Dowry Prohibition Act against the petitioner. After investigation, the police filed charge sheet before the Chief Metropolitan Magistrate, Hyderabad (2nd respondent) who took the cognizance of the same for the above offences and registered the same as P.R.C.No.32 of 2009. Subsequently the 2nd respondent committed the case to the Metropolitan Sessions Judge, Hyderabad for trial, as per order dated 26.08.2009. 2. In this writ petition, the petitioner seeks writ of mandamus declaring acts and deeds of the respondents in fabrication of case in Crime No.275 of 2006, taking cognizance of offences in charge sheet and passing impugned order dated 26.08.2009 in P.R.C.No.32 of 2009 by the 2nd respondent as illegal, void, ultra vires and violation of fundamental rights to life guaranteed under Articles 21 and 22 of the Constitution of India and consequently setting aside the impugned order dated 26.08.2009 passed by the 2nd respondent in P.R.C.No.32 of 2009. 3. As the matter now stands, there is no dispute that the case is pending against the petitioner as Sessions Case No.412 of 2009 on the file of II Additional Metropolitan Sessions Judge, Hyderabad. The 8th respondent is father-in-law of the petitioner and father of the 9th respondent. The 4th respondent is maternal uncle of the 9th respondent. It is stated that he is working as Senior Civil Judge. According to the petitioner, on the influence of the respondents 4 to 8, Chatrinaka police registered a false case and created false statements of witnesses and foisted false charge sheet against the petitioner. Truth or otherwise of the criminal case cannot be gone into and decided in this writ petition while exercising powers under Article 226 of the Constitution of India. It is a matter to be decided by the II Additional Metropolitan Sessions Judge, Hyderabad in whose court the sessions case is pending trial. It is only after trial in which the prosecution as well as the accused/petitioner will produce their oral and documentary evidence, and then the II Additional Metropolitan Sessions Judge, Hyderabad will be in a position to decide the same after appreciation of evidence let in by both the parties in the Sessions case. 4. It is contention of the petitioner that no offence took place within the limits of Chatrinaka police station and that even as per evidence of the 9th respondent herein in F.C.O.P.No.738 of 2006 on the file of Judge, Family Court, Hyderabad, no such offence as alleged took place and that on the influence of maternal uncle of the defacto-complainant by name B. Gnaneshwar Rao working as Senior Civil Judge and offers Chatrinaka police registered false case and filed charge sheet without they having territorial jurisdiction. On the same contentions, the petitioner filed Criminal M.P.No.335 of 2009 in S.C.No.412 of 2009 in the II Additional Metropolitan Sessions Judge’s Court and that petition was dismissed by that Court by order dated 03.10.2009. Questioning that order, the petitioner filed Criminal R.C.No.1695 of 2009. This Court simultaneously heard this writ petition and Criminal R.C.No.1695 of 2009. Today, this Court dismissed Criminal R.C.No.1695 of 2009 on merits. While considering oral evidence of the 9th respondent herein in F.C.O.P.No.38 of 2006, this court cannot brush aside statement of the 9th respondent/defacto-complainant contained in report given under Section 154 Cr.P.C and also her statement recorded by the investigating officer under Section 161(3) Cr.P.C during investigation. There cannot be any dispute that statements of the defacto-complainant/victim therein and other witnesses examined by the investigating officer during investigation under Section 161(3) Cr.P.C. prima facie disclose the offences for which cognizance was taken by the Magistrate. In case, there are any contra-versions given by the 9th respondent during her evidence in F.C.O.P.No.738 of 2006, then it is a matter for appreciation of her evidence by the Sessions court after trial, in case oral evidence of the 9th respondent/defacto-complainant/victim in F.C.O.P.No.738 of 2008 is properly and legally brought on record during trial of the sessions case. In this petition under Section 226 of the Constitution, court cannot undertake assessment of evidence. This Court is of the view that material collected by the police during investigation and produced along with charge sheet prima facie discloses offences for which cognizance was taken by the 2nd respondent. 5. Whether the alleged offence took place at Shaikpet within Lunger House police station limits or whether the offence took place within Chatrinaka police station limits, it matters little for the Sessions court because both the said police stations are located within Hyderabad only and within the territorial jurisdiction of that court. It is not as if one of the two police stations is located outside the territorial jurisdiction of that court. According to the 9th respondent/defacto-complainant as well as the police, the offence also took place when the parties were living at Shivaganga Nagar within Chatrinaka police station limits. It is a matter to be decided by the trial court after both the parties leading evidence during trial. This disputed question of fact cannot be decided much less entertained during enquiry of this petition under Section 226 of the Constitution of India. 6. It is contended by the petitioner’s counsel that the petitioner/accused was taken into custody by the Chatrinaka police when he was at Nampally. Wherever he is, the police are at liberty to apprehend an accused person in case a case for cognizable offences is registered and the accusations therein are well founded as per the material collected by the police during investigation of that case. 7. Designation of the 4th respondent as Senior Civil Judge is immaterial because he happened to be maternal uncle of the 9th respondent/defacto-complainant/victim. Naturally as maternal uncle, he may be interested in welfare of his niece and he may support her. That cannot be a disqualification in the criminal case much less a circumstances which throw doubt on truth or otherwise of the criminal case. This case has to be decided by the Sessions court purely on the basis of merits of oral and documentary evidence to be let in by the prosecution and also by the defence if any. This Court finds that there are no legal and valid grounds to intercept trail of the criminal case. 8. The petitioner’s counsel prays for appointment of an Advocate Commissioner for recording statements of the petitioner’s witnesses with regard to rented premises where the petitioner lived with the 9th respondent, in order to show that they never resided at Shivaganga Nagar within Chatrinaka police station limits. Power of this Court under Section 226 of the Constitution of India cannot be abused by the petitioner for collecting defence evidence in Sessions Case No.412 of 2009 pending before the II Additional Chief Metropolitan Sessions Judge, Hyderabad. It is for the petitioner to lead necessary evidence in that regard before the Sessions court where the sessions case is pending, when opportunity is given by that court to lead his evidence after conclusion of prosecution evidence and examination of the accused/petitioner under Section 313 Cr.P.C. No Advocate Commissioner can be appointed for fishing out evidence in support of the petitioner who is the accused person in a grave offence. This Court finds no substance in this writ petition. This petition is nothing but abuse of process of this Court. 9. No offer point was urged by the petitioner’s counsel. 10. In the result, the writ petition is dismissed. No costs. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:13.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO.19872 OF 2009 Date:13.07.2010 Gk.