HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.5142 of 2​008 ORDER: The petitioner herein is the accused in C.C.No.345 of 2007 on the file of the Court of the Judicial Magistrate of First Class (JFCM), Guntakal. He filed this petition under Section 482 of the Code of Criminal Procedure (Cr.P.C) to quash the proceedings in the said calendar case. 2. Thus the point is whether there are grounds to quash the proceedings in the above criminal case against the petitioner. 3. The allegations against the petitioner in the above C.C.No.345 of 2007, briefly stated, are that at the relevant time he was Superintendent of the Government Observation Home for Boys, Rajendranagar at Guntakal and that he forcibly employed the alleged victim a boy by name Vadde Veeresh an inmate of that home as his servant in his house and did not allow him to go to his parents. 4. To decide the point the circumstances which led to the registration of C.C.No.345 of 2007 should be noted. Sri J.Chandra Babu the then JFCM, Guntakal sent an official memo dated 18.11.1999 to the Station House Officer of Guntakal II Town Police Station directing the latter to register a case and submit a report. The said official memo reads as follows. Office of the JFCM’s Court, Guntakal, dt:18.11.99 OFFICIAL MEMO “Sub:- OBSERVATION HOME FOR BOYS – GUNTAKAL – Intimate by name Veeresh, being utilised at the Superintendent’s house at Anantapur –as a servant – News item published in Vartha Telugu daily Edition dated 18.11.1999 – Investigation ordered – Report within One week – Reg. @@@ It is published in Vartha Telugu Daily District Edition dated 18.11.1999 that the inmate by name Veeresh, observation Home for Boys, Guntakal is being utilised in the house of Superintendent, at Anantapur as a servant and it is being done for the last 2 months. The Welfare Board Chairman of the Observation Home for Boys, Guntakal by name Sri P.N.R. Prasad Reddy stated in the said publication that the Veeresh inmate was transferred to observation Home for Boys Bellary and the said inmate is not present either in the Bellary Home or at Guntakal Observation Home. The allegations revealed that the Superintendent, Observation Home has committed the offences punishable Under sections 344, 346, 363, 365, 367, 368, 370 and 374 IPC. The Station House Officer, II Town P.S. Guntakal is hereby directed to take immediate action by registering F.I.R. in respect of the above incident and submit a report within one week. The S.H.O. is directed to refer ‘Eenadu’ Telugu daily dt.18.11.1999 for more particulars of the incident. This is referred u/S.156(3) Cr.P.C.” 5. The Station House Officer concerned after receiving the above official memo registered it as Crime No.62/1999 of his Police Station and took up investigation and filed the charge sheet against the petitioner who at the relevant time was Superintendent of the Observation Home for Boys, Guntakal. It may be noted that the charge sheet has been filed for offences under Section 344 IPC (wrongful confinement for ten or more days), Section 346 IPC (wrongful confinement in secret), Section 363 IPC (punishment for kidnapping), Section 365 IPC (kidnapping or abducting with intent to wrongfully confine a person), Section 368 IPC (wrongfully conceiving or keeping in confinement a kidnapped or abducted person) and Section 374 IPC (unlawful compulsory labour). 6. It may be noted that all the offences except Section 368 IPC are expressly shown as triable by a Magistrate or a First Class Magistrate. However the offence under Section 368 IPC is shown as triable by a Court by which the offence of kidnapping or abduction are triable. In this case Section 368 IPC is mentioned as connected to Section 365 IPC which is triable by a JFCM and hence that offence is also triable by the JFCM. It appears that in these circumstances the JFCM took cognizance of the charge sheet as C.C.No.345 of 2007 which is now in question. 7. The 1st contention of the petitioner is that Sri J.Chandra Babu the then JFCM, Guntakal himself sent the official memo dated 18.11.1999 mentioned supra and pursuant to the same the investigating officer filed charge sheet and Sri Chandra Babu himself took cognizance of the same and this is illegal as the complainant himself cannot take cognizance of it for judging the matter and therefore, the case in question should be quashed. The learned counsel for the petitioner in the course of arguments reiterated the above contention and in support of the same he also relied upon a judgment of this Court given in DR. R. NARAYANA vs. GOVERNMENT OF A.P. AND OTHERS[1]. It is thus clear that this contention relates to a question of law. 8. The 2nd contention of the petitioner relates to a motive attributed to Sri J.Chandrababu, the then JFCM. In this connection, the petitioner made certain allegations against him in this petition and stated that he has hastily acted at the instance of one Sri Prasad Reddy an Advocate who was the Chairman of the Juvenile Welfare Board and who was waiting for an opportunity to harass him (petitioner). The said allegations are contained in the introductory facts given in this petition before mentioning the grounds for quashing the criminal case. Further it is also stated in ground No.2 that earlier this very same Magistrate tried another case i.e. C.C.No.155 of 2005 against this petitioner for offences punishable under Section 189 and 506 IPC and he also convicted the petitioner in the said case on presumptions and assumptions and probabilities and therefore the present case filed against him should be quashed. The name of Sri Prasad Reddy is mentioned in the aforesaid official memorandum of the JFCM sent to the police. I shall deal with these aspects also a little later after examining the above law point relating to the power of a JFCM to give a complaint to the police or ordering investigation and taking cognizance of a case or charge sheet filed pursuant to such investigation. 9. Now coming to the 1st contention of the petitioner, Section 190 of the Cr.P.C which deals with cognizance of offences by Magistrates is relevant. Section 190(1) says that a JFCM may take cognizance of any offence (a) upon receiving a complaint of facts which constitutes such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Thus it is clear that a JFCM going by Section 190(1)(c) can also take cognizance of an offence upon information received by him from any person other than a police officer. 10. It may then be noted that Section 156 Cr.P.C speaks of the power of a police officer to investigate a cognizable case. Now Section 156(3) Cr.P.C says that any Magistrate empowered under Section 190 may order such an investigation into a cognizable case. The question now is whether the Magistrate has got the power to take cognizance of an offence under Section 190 Cr.P.C on information received about the commission of a cognizable offence from a person other than a police officer whether he can refer such information to the police under Section 156(3) Cr.P.C and direct them to investigate into the matter and submit a report. 11. The Apex Court in MADHUBALA vs. SURESH KUMAR[2] had an occasion to consider the scope of the power of a Magistrate under Section 156(3) Cr.P.C to refer a complaint filed before him to the concerned police and to give a direction asking the police to register a case and investigate the matter. Rejecting the contention that the Magistrate has no such power, the Apex Court in the above decision held that where a complaint disclosing a cognizable offence is filed before him he may take cognizance of the said offence under Section 190(1)(a) of the Cr.P.C and proceed with it taking further steps in the matter. It has also been held that the other option open for the Magistrate in such a case is to send the complaint to the appropriate police station under Section 156(3) of Cr.P.C for investigation. In that connection the Apex Court held that in that process if a direction is given by the Magistrate asking the police to register a case and investigate it such a direction cannot be said to be illegal. 12. It should be noted that Section 156(3) Cr.P.C reads that “any Magistrate empowered under Section 190 may order such an investigation” and such an investigation means an investigation which can be made by a police officer under Section 156(1) Cr.P.C in respect of a cognizable offence. It can therefore be inferred that even without a complaint from an aggrieved person, if the Magistrate receives information from a person other than a police officer on which he can act under Section 190(1)(c) of the Cr.P.C., he can also refer such information under Section 156(3) Cr.P.C to the concerned police for investigation and report. This provision which gives a very wide power to the Magistrate was shown to the petitioner’s counsel in the course of arguments seeking a clarification from him whether such power can be fettered going by the language of Section 190 and Section 156 Cr.P.C. He could not cite any authority to show that any fetter can be placed upon it. On the other hand the above decision of the Apex Court in MADHUBALA’s case (2 supra) supports the view that a Magistrate can also refer information received by him from a person other than a police officer to the appropriate police station and direct the said police to register a case and investigate it. 13. Thus for the afore said reasons it can be concluded that the JFCM Guntakal has got the power to refer information received by him from a person other than a police officer to the appropriate police station and call for an investigation report by directing the said police to register a case. The next question that may now arise is whether the Magistrate could act on a press report. A perusal of the official memo dated 18.11.1999 would show that the press report mentioned therein was given by one Sri P.N.R.Prasad Reddy who was the Welfare Board Chairman of the Observation Home for Boys/ Guntakal. This Prasad Reddy appears to be the same person mentioned by the petitioner as the person inimically disposed towards him and this aspect will be dealt with a litter later. In other words it is clear that the Magistrate has taken that press report not as a mere press report but as an information given by the Welfare Board Chairman. Thus it can be said that the Magistrate has treated that information about the commission of a cognizable offence from a person other than a police officer as contemplated under Section 190(1)(c) Cr.P.C. This is in my view permissible. It should also be noted here that this Prasad Reddy has been cited as listed witness No.7 in the charge sheet in C.C.No.345 of 2007 and this is a minus point for the petitioner. 14. The learned counsel for the petitioner in the course of his arguments pointed out that the official memo dated 18.11.1999 of the JFCM shows that he has already taken cognizance of the case and then referred it to police for investigation which is contrary to the law laid down in the case of DR. R. NARAYANA’s case (1 supra) and relied upon by him. This contention cannot be accepted for the following reasons. 15. It is true that the learned Magistrate has referred to the offences as those punishable under Sections 344, 346, 363, 365, 367, 368 and 374 IPC. The relevant paragraph in the official memo is again referred to and it reads as follows. “The Welfare Board Chairman of the Observation Home for Boys, Guntakal by name Sri P.N.R. Prasad Reddy stated in the said publication that the Veeresh inmate was transferred to observation Home for Boys Bellary and the said inmate is not present either in the Bellary Home or at Guntakal Observation Home. The allegations revealed that the Superintendent, Observation Home has committed the offences punishable Under sections 344, 346, 363, 365, 367, 368, 370 and 374 IPC.” 16. The language used by the learned Magistrate in the above paragraph shows that the same cannot, in my opinion, be concluded to hold that the Magistrate has already taken cognizance of the case for the offences mentioned in the said paragraph. It is true that the word “revealed” is used in the said paragraph as if to show that the Magistrate has already come to a conclusion about the offences. It may however be noted that the whole language indicates that the Magistrate merely expressed an opinion that the press report revealed the said offences. Thus it cannot be said that the Magistrate has already taken cognizance of the said offences. 17. The above view stands fortified by the fact that the subsequent paragraph of the memo reads that the Magistrate has referred the matter to the SHO of Guntakal Town police station and directed him to register case in respect of the incident reported in the press report and investigate the same and submit a report. The Magistrate made it a point to mention that the said memo was referred to the police in exercise of his power under Section 156(3) Cr.P.C which he is competent to do. Thus the contention of the petitioner’s counsel that the Magistrate had already taken cognizance of the matter and again referred it to police cannot be accepted. 18. It may then be noted that the concerned Station House Officer registered the above official memo as Crime No.62/1999 of Guntakal II Town Police Station and took up investigation. He accordingly filed a charge sheet after the completion of the same for offences punishable under Sections 344, 346, 363, 365, 368 and 374 IPC. The charge sheet copy filed by the petitioner himself in his paper book shows that the investigating officer has examined fourteen (14) witnesses including the alleged victim boy Vadde Veeresh and also Prasad Reddy mentioned by the petitioners. It also reads that the investigating officer has examined the then Supervisor of the Observation Home and four other boys of the Observation Home and further he also got the Section 164 Cr.P.C. statement of the victim boy recorded by the then JFCM, Gooty. 19. It may be noted that even if the Magistrate gives a direction to the police to register a case and file a report, it cannot be construed as directing the police to file a charge sheet which a Magistrate cannot do and this legal position is made clear in ABHINANDAN JHA vs. DINESH MISHRA[3] and at best he can direct a further investigation where he is not satisfied with the closure report filed by the police. It is thus clear that even if Magistrate mentions the offences in his order and directs the police to register a case and file a report it cannot be construed as binding on the investigating officer and the latte can come to his own conclusion regarding the commission of offences or otherwise. 20. In the present case the charge sheet shows that the concerned investigating officer did not blindly file the charge sheet pursuant to the official memo given by the Magistrate but he examined all the relevant witnesses and then filed his charge sheet disclosing the offences though they were already mentioned by the Magistrate. Thus there is nothing wrong in this procedure. In DR. R. NARAYANA’s case (1 supra) relied upon by the petitioner’s counsel, the Sub-Divisional Magistrate took cognizance of the case on the complaint of an official and then gave a direction to the concerned police to register the FIR and investigate the matter. This was held to be bad in the said case. That is not the case here. The Magistrate in the present case issued the official memo directing the police under Section 156(3) Cr.P.C to register the case and file a report which is permissible. This direction cannot be construed as a direction to file a charge sheet but only to file a report contemplated under Section 173 Cr.P.C. This report can be a closure report or a charge sheet and it is for police to decide what should be done in such a case. Hence the above case relied upon by petitioner’s counsel is distinguishable on facts and cannot help the petitioner. 21. The other contention which was raised by the petitioners counsel was that the very same Magistrate Sri J.Chandrababu who sent the official memo again took cognizance of the charge sheet in question and that is illegal. This contention cannot also be accepted. Section 191 Cr.P.C becomes relevant here and it reads as follows. “191. Transfer on application of the accused:- When a Magistrate takes cognizance of an offence under clause (c), of sub-section (1) of Section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.” 22. A perusal of Section 191 Cr.P.C shows that where a Magistrate takes cognizance of an offence under section 190(1)(c) of the Cr.P.C i.e. either upon his own knowledge or upon information received by him from a person other than a police officer, the Magistrate is duty bound to inform the accused about his option or choice to have the case tried by another Magistrate and if the accused raises an objection the case should be transferred to such other Magistrate as specified by the concerned Chief Judicial Magistrate. It is true that in the present case in the charge sheet the Magistrate Sri J.Chandrababu has been cited as the first witness and it is also true that the case was investigated and charge sheet filed pursuant to the official memo of the said Magistrate. Even in such a situation the above principle in Section 191 Cr.P.C becomes applicable and the petitioner/ accused can apply to have his case tried by another Magistrate if Sri J.Chandrababu is still continuing there as JFCM, Guntakal before which the case is pending. This answers the above contention of the petitioner’s counsel. 23. Then turning to the contention of the petitioner’s counsel that Sri Prasad Reddy the Welfare Board Chairman was inimically disposed towards the petitioner and that therefore he gave the press report and was instrumental in influencing the Magistrate to send the official memo in question and consequently the proceedings in the case should be quashed, the said contention cannot also be accepted. 24. Even assuming for a moment that Prasad Reddy may be inimical to the petitioner, what should be noted is that after the Magistrate gave the official memo in question the concerned investigating officer investigated the case and filed charge sheet after examining all the relevant witnesses. Thus importance should be given to the investigating report/charge sheet of the investigating officer and no bias has been attributed to him. The charge sheet discloses that the case is based on the version of not only the alleged victim but certain other inmates and officials of the Observation Home. It is not for this Court to go into the truthfulness or otherwise of the said case now and that has to be decided by the trial Court. It should also be noted here that mere enmity is not a ground to quash the FIR or a charge sheet when they contain verifiable allegations and when police have investigated the case and filed the charge sheet the truthfulness or other wise of the same is a matter to be decided by the Court before which the case is pending. It must be stated here that the allegations made against the learned Magistrate by the petitioner are not substantiated and it shall be open for the petitioner to put forward all his defences before the trial Court in the enquiry before framing of charges or in the trial which may follow to show his innocence. 25. Another contention which was raised on behalf of the petitioner was that the learned Magistrate who issued the official memo also tried another case i.e. C.C.No.155 of 2005 against the petitioner for the offences under Sections 189 and 506 IPC and convicted him and therefore the proceedings against him in the present case should be quashed. This plea is taken in ground No.2 of the grounds of petition. The said ground is reproduced below. “It is to submit that the present I st Class Magistrate previously tried C.C.No.155/2005 under which the Petitioner was charged for the offences under Sections 189 and 506 IPC. In that case, the present Presiding Officer recorded evidence and convicted the Petitioner accepting the case of the Prosecution on presumptions and assumptions and probabilities. Thus, in that case the Judicial Magistrate of Ist Class accepted the evidence of the Complainant. It is to submit that in the present case C.C. 345/20007 also, the same person is the Complainant who gave complaint in C.C. 155/2005. Hence, it may not be feasible to ask the Petitioner to face trial in C.C.No.345/2007 before the same Magistrate, who may have developed prejudice against the petitioner.” 26. From the above averment in the ground No.2 it is not clear whether it is the grievance of the petitioner that the very same Chandrababu who sent the said official memo tried the case. A copy of the judgment dated 06.08.2007 in C.C.No.155/2007 is filed by the petitioner in his paper book. The said copy shows that the said case was disposed of by one Sri G.Sudarshan the then JFCM, Guntakal but not Sri Chandrababu. This contention and the above ground are only mentioned to show the frivolousness in the contention of the petitioner. Even otherwise it may be noted that just because the disposal of a case by a judicial officer went against a party, that by itself cannot be a ground for that party to say that his other cases should not be tried by the said judicial officer and if this is allowed it would amount to setting up a bad precedent and the system cannot work. 27. Thus for the aforesaid reasons all the contentions of the petitioner are rejected. It should be noted that in the charge sheet offences punishable under Section 344 IPC, Section 346 IPC, Section 363 IPC, Section 365 IPC, Section 368 IPC and Section 374 IPC are mentioned. The main allegations against the petitioner in the charge sheet are that the victim boy was admitted in the Government Observation Home for Boys, Guntakal, in the year 1998 and that in the first week of January 1999 he cried for his parents and that the petitioner at that time took him to his house at Anantapur and used him as a servant in his house and did not allow him to go to his parents and that later on the victim boy escaped and went to his village Siriguppa of Bellari District and informed his parents about the alleged illegal detention. These are the main allegations made in the charge sheet. 28. In other words after completion of the investigation the police filed charge sheet with the above case. These allegations if believed do disclose offences against the petitioner relating to illegal detention of the victim and other connected offences relating to forcible employment of the victim boy in his house as a servant. It may be noted that the concerned Court of JFCM trying the case is not bound by the offences mentioned in the charge sheet. It is now well settled that it is always