HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.3382 of 2011 ORDER:- The two petitioners herein are the 3rd and the 20th accused in the criminal case i.e. C.C.No.2258 of 2010 on the file of the Court of XIV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad (trial court). They along with 22 other accused have been charge sheeted by the Inspector of Police, Special Investigation Team, Hyderabad, for offences punishable under Sections 147, 506, 186, 228, 153-A IPC read with Section 149 IPC and Section 3 of the Prevention of Damage to Public Property Act, 1984. 2. The petitioners filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short Code), to quash the aforesaid criminal case against them. 3. When the matter was first heard, Sri Tarakam the learned Senior Counsel appearing for the petitioners was requested to file a copy of the order by which the trial court took cognizance of the case in order to see for what offences it has taken cognizance of the same as it was felt necessary for disposal of this petition. Accordingly, he filed additional material papers showing a copy of the charge sheet and the cognizance order passed upon it by the trial court. The second respondent herein who is the de facto complainant is the Court Officer. As this is a police case the learned Additional Public Prosecutor argued the case of the prosecution opposing this petition and hence it was considered unnecessary to hear the de facto complainant. The matter was heard at length at the admission stage itself and it is now taken up for disposal. 4. The point that therefore arises for determination in this petition is whether there are grounds to quash the aforesaid C.C.No.2258 of 2010 as against the petitioners. 5. The substance of the prosecution version regarding the incident which is the subject matter of C.C.No.2258 of 2010 is that on 14.09.2010 at about 11.30 AM all the 22 accused who are advocates along with some others went around the court halls in the premises of the High Court of Andhra Pradesh shouting slogans demanding boycott of work in courts as part of their agitation for formation of a separate Telangana State. It is alleged that in that transaction all the 22 accused and others raising slogans demanding formation of a Telangana State went to Court Hall No.32 of the High Court of Andhra Pradesh where the Presiding Judge there was conducting the judicial proceedings and raised slogans there also and obstructed the proceedings. It is further alleged that they also obstructed some advocates and further manhandled one advocate and prevented them from prosecuting their matters in the said court and damaged the glasses of the almyrahs and switched of the lights when the court proceedings were going on and they also damaged the chairs in the court hall and committed other violent acts. It is also alleged that by their slogans all accused also tried to create or created disharmony among people of different regions of our State. The other details regarding the alleged violent acts of the accused are mentioned in the charge sheet and it is not necessary to repeat them here for the purpose of this petition. 6. Sri Tarakam inviting my attention to the offences mentioned in the charge sheet, firstly, contended that the offence under Section 186 IPC cannot be taken cognizance except on the complaint in writing of the public servant concerned or his subordinate as stipulated in Section 195(1)(a)(i) of the Code and similarly the offence under Section 228 IPC cannot be taken cognizance except on the complaint of the Court or an officer of such court as authorised in that behalf as contemplated under Section 195(1)(b)(i) of the Code and therefore to that extent or in respect of those offences the charge sheet is bad. He then argued that even for taking cognizance of the offence under Section 153-A IPC sanction of the State Government in this case is necessary as contemplated under Section 196 of the Code and as there is no such sanction here cognizance of the case for the said offence is also bad. 7. Sri Tarakam then secondly contended that the contents of the FIR, statements of the de facto complainant and also the other witnesses under Section 161 of the Code said to have been recorded by the police would show that none of them have positively identified any of the accused as the miscreants or culprits and therefore this circumstance alone is enough to quash the case. He also argued that the police did not take any steps to get a test identification parade conducted and this is an added circumstance which weighs in favour of the petitioners for quashing the case as the record shows that none of the witnesses had any acquaintance with the accused. He also pointed out that statements of some of the witnesses would read that they identified some of the accused basing on their photographs shown to them by the police and this identification is no identification at all and this is also a minus point for the prosecution and weighs in favour of the petitioners for quashing the case. 8. The learned Public Prosecutor repelled both the above contentions and argued that the circumstances in this case do not warrant interference by this Court under Section 482 of the Code and consequently the trial court should be allowed to go ahead with the case and decide it on merits and petitioners may raise all their objections before the said court. 9. So far as the first contention of Sri Tarakam is concerned, the cognizance order of the trial court a copy of which is filed by him would be relevant and it reads as follows. “Case is taken on file u/s.147, 506, 153A R/W 149 IPC against A1 to A24. Issue NBWs to A1 to A24.” 10. There is no dispute about the above cognizance order. The cognizance order of the trial court would show that it did not take cognizance of the case for the offences punishable under Sections 186 and 228 IPC. Hence as the trial court itself did not take cognizance of the case for the said offences it is not necessary to discuss the contentions of Sri Tarakam with regard to the said offences as it would be unnecessary and as it is not the practice of this court to pronounce upon something about which there is no adverse order against petitioners. The petitioners can raise their objections if the trial court in future proceeds to take up the case with respect to the said offences also. 11. Then with regard to the offence punishable under S.153-A IPC, it deals with the offence of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground which may nurture or bring about disharmony or feelings of enmity among them. Now Section 196(1)(a) of the Code lays down that no court shall take cognizance of the offence under Section 153-A IPC in addition to other offences specified therein except with the previous sanction of the Central Government or of a State Government. In the present case sanction of the State Government is necessary for taking cognizance of the offence under Section 153-A IPC. It should now be noted that in the charge sheet it is mentioned in the penultimate paragraph that Government was addressed for according permission to prosecute the accused under Section 153-A IPC and the matter is pending with the Government. This itself suggests that the concerned investigating officer filed the charge sheet for the said offence without such sanction. 12. It may be noted that Section 196(1) of the Code expressly prohibits the very taking cognizance of the offence under Section 153-A IPC by a court without the sanction of the State Government and such sanction is necessary in this case. The cognizance order of the trial court already extracted supra would show that it did take cognizance of the case for the offence under Section 153- A IPC also without the sanction of the State Government. The normal rule is that criminal law can be set in motion by any person. However Sections 195 to 199 of the Code lay down certain exceptions to this rule in the form of certain conditions which have to be complied with before a court takes cognizance of the offences specified in those sections and criminal law in respect of those offences cannot be set in motion by anybody in respect of other offences. It is not necessary to discuss the above provisions at length. It would be sufficient to note that in respect of an offence punishable under Section 153-A IPC the prior sanction of the State Government is necessary and this is the condition to be complied with for taking cognizance of the said offence by a court. In view of this absolute bar it has to be held that the cognizance order of the trial court in the absence of any sanction by the State Government in so far as it relates to the offence punishable under Section 153-A IPC must be held to be bad. The learned Additional Public Prosecutor could not justify the cognizance order of the trial court in respect of this offence. 13. It may then be noted that the cognizance order of the trial court would show that it took cognizance of the case for the offences under Sections 147 and 506 IPC read with Section 149 IPC. These offences relate to rioting by unlawful assembly and criminal intimidation by all accused. It should however be noted here that in the charge sheet the offence under Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short Act) is also mentioned but the cognizance order shows that the trial court did not take cognizance of that offence. To take cognizance of these offences and to deal with them no sanction of any competent authority is necessary nor any precondition is required to be complied with. 14. At the risk of repetition it should be noted that in substance the plea of the prosecution is that all the accused in an unlawful assembly by raising slogans went to Court Hall No.32 and damaged the court property i.e. almyrahs and chairs which can be said to be public property apart from manhandling one advocate and threatening some other advocates who were in the court hall to prosecute their matters in order to coerce them to leave the court hall and they (accused) are also said to have intimidated the other advocates present in the court hall and obstructed the judicial proceedings. To cover the above aspects/alleged acts of accused the investigating officer has charge sheeted them for the offences punishable under Sections 147 and 506 IPC and Section 3 of the Act read with Section 149 IPC also. It may be noted that the above offences by themselves prima facie constitute independent and distinct offences for which there is no statutory bar for taking cognizance as in the case of the other three offences namely Sections 186, 228 and 153-A IPC. Further the offences under Sections 147, 506 IPC and Section 3 of the Act are on charge sheet allegations separable from the aforesaid other three offences. Hence it follows that the trial court can independently deal with the said offences and on the charge sheet allegations they cannot be said to be baseless or unfounded. Thus to the extent of the offences under Sections 147, 506 IPC and Section 3 of the Act read with Section 149 IPC the charge sheet or the cognizance order cannot be said to be bad in law. 15. Regarding the offence punishable under Section 3 of the Act which deals with damage to public property, a perusal of Section 3 of the Act would show that it deals with mischief causing damage to public property and is punishable with a minimum sentence of six months imprisonment and the maximum extending upto five years and also with fine. The Act does not specify the court by which the said offence is triable. Thus going by entry 2 in Part II of the Schedule to the Code the said offence is triable by a JFCM and consequently the trial court is competent to try the said offence. It is not known why the trial court being a JFCM court did not take cognizance of the case for the above offence also especially when it is alleged in the charge sheet that furniture and almyrahs in the court hall which are public property have been damaged. 16. It should be noted here that Section 2(b) of the Act defines ‘public property’ and it is defined to mean mainly the property of the Central Government or any State Government. It may be noted that a Court of Justice is part of the Government and that expression in its larger sense would include all the three branches of the Government namely Legislature, Executive and Judiciary. I think no further elaboration is called for. Thus on the allegations in the charge sheet the trial court should have taken cognizance of the case for the above offence also. 17. The question will now arise as to what would be the effect of the trial court in not taking cognizance of the case for the offence punishable under Section 3 of the Act and whether it is precluded from proceeding with the case in respect of that offence. A perusal of Section 190 of the Code would show that power is given under that Section to a Magistrate to take cognizance of the case. It may then be noted when the Magistrate decides to issue process the next step would be to deal with the case and proceed to frame charges if it is a warrant case or proceed to deal with it as a summons case if it is not a warrant case. If it is a warrant case instituted on a police report as in the present situation the Magistrate can proceed to frame charges under Section 240 of the Code after considering any plea of the accused for discharge. 18. The above provision reads that the power of the Magistrate to frame charges is very wide and he is not bound by the offence for which he has taken cognizance of the case and he can also proceed to frame charges in respect of other offences which are made out and he even can delete an offence mentioned in the charge sheet if he ultimately finds that the material filed by the police does not disclose that offence. This is the settled position. Hence it follows that the trial court can proceed with the above offence also on the charge sheet allegations. It is however made clear that it can decide on this aspect after giving an opportunity to accused. Thus this is the position obtaining on the charge sheet allegations which shows that the present case cannot be quashed for the aforesaid reasons. 19. Sri Tarakam however under his second contention strenuously argued that the de facto complainant failed to name the assailants/accused in the FIR and the statements of the witnesses recorded under Section 161 of the Code do not establish the identity of the accused and that police did not conduct any test identification parade and therefore the case should be quashed on those grounds. It may be noted that the said grounds pertain to questions relating to appreciation of evidence and merits of the matter which cannot be gone into under Section 482 of the Code. 20. It is well known that the Supreme Court in a catena of decisions has categorically held that what all a High Court should see in a quash petition for quashing a case under Section 482 of the Code is whether uncontroverted allegations in the FIR or in the charge sheet disclose offences or not and if such allegations disclose offences the matter should be left to the Court before which the case is pending for a decision on merits. This is the settled legal position and mention of any authorities for this proposition is not necessary. In fact the decision of the Supreme Court given Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chadrojirao Angre[1] relied upon by Sri Tarakam reiterates the above proposition. However, on facts, the said case decided by the Supreme Court is not comparable to the present one as it pertains to a civil dispute which was given a colour of criminal offence. 21. In the present case the plea of the prosecution is that all the accused have indulged in acts of violence and damaged court property which has to be treated as public property and also intimidated the advocates who are in court. Thus the allegations would show offences falling under Sections 147, 506 IPC and Section 3 of the Act read with Section 149 IPC which court can deal with as there is no statutory bar for taking cognizance of the said offences. Thus this is a case where it cannot be said that if the allegations are believed they do not disclose any offences. Thus the contention of Sri Tarakam based on the above decision cannot be accepted. 22. It may however be noted that Sri Tarakam with all the vehemence at his command invited my attention to the contents of the FIR and the statements of the witnesses including that of the de facto complainant and the failure of the police to hold test identification parade and pointed out that these circumstances are enough to quash the case. It is difficult to accept this contention. 23. The de facto complainant is said to be one V.Seetharama Raju the then Court Officer of the 32nd Court in the High Court near and in which the alleged incident is said to have taken place. A perusal of the copy of the report given by the said Seetharama Raju to the police and copies of his statement and the statements of other witnesses recorded under Section 161 of the Code may show that they could not positively speak about the identity of the accused who are said to have participated in the alleged incident. However a perusal of the statements of the witnesses namely Md.Samsheer Ali the then Record Assistant in the 32nd Court, Sri Ramchand the then Attender in the 32nd Court, the Registrar (Administration), the Registrar (Enquiries), and witnesses A.Kalidas, K.Rajanna, D.Venkataiah and other witnesses recorded under Section 161 of the Code would show that they stated that they have seen the incident and that they can identify the culprits if they see them again. Some of the other witnesses are police officers who were on duty at the 32nd Court when the incident is said to have occurred and their version is also to the effect that they can identify the accused if they see them again. Of these witnesses Sri K. Rajanna is an Advocate who is said to have been present in the above Court and who is said to have been manhandled and he spoke about the identity of the accused and he even named some of them but his statement is that he could identify the accused after police showed him the photographs. 24. It is also true that the record would disclose that the investigating officer did not hold any test identification parade as pointed out by Sri Tarakam. It may now be noted that this is a case where the witnesses have stated in chorus that they could not name the advocates who indulged in violence but they stated that they could identify them if they see them again. In this situation the question is whether this Court can straightaway interfere under Section 482 of the Code and quash the criminal case merely on the ground that no test identification parade was held and the statements of the witnesses recorded under Section 161 of the Code cannot be held to be sufficient to find the accused/petitioners guilty of the offences for which they can be proceeded with. The answer to this question in my opinion should be in the negative for the following reasons. 25. It may be noted that a previous identification of accused by witnesses is made relevant under Section 9 of the Evidence Act, 1872, and it is in that context a previous test identification parade that is conducted by a JFCM or other competent authority or officer under the relevant law is made relevant in a criminal trial as a corroborative piece of evidence. It should however be noted that in Simon v. State of Karnataka[2] it has been held by the Apex Court that mere failure to hold a test identification parade would not make the evidence of identification in the Court inadmissible and what weight is to be attached to such identification is a matter for the Court to examine on the facts of each case. It has also been held in this connection that in appropriate cases, the Court may accept the evidence of identification even without insisting on corroboration or reject it. 26. Thus what emerges from the above legal position is that whether accused are guilty of the offences or not and whether failure of the police to hold a previous test identification parade is fatal or not are all matters pertaining to appreciation of evidence and they fall within the realm of disputed questions of fact. It is now well settled that a High Court sitting under Section 482 of the Code cannot go into these questions and decide the matter one way or the other. It therefore follows that all these questions have to be decided by the trial court. 27. One criticism which was vehemently made by Sri Tarakam is about identification of suspects by the photos shown to witnesses by the police. It is true that some of the witnesses gave the names of the accused by stating before police that they could identify the accused by seeing the photos shown to them. Even on this aspect it has been held by the Apex Court in State (NCT of Delhi) v. Navjoth Sandhu[3] that identification by photographs is also permissible under law but what weight is to be given for such identification is again a matter of appreciation of evidence. Thus this question can also be raised by the petitioners in the trial Court. 28. Lastly, Sri Tarakam pointed out that these petitioners and the other accused espoused the cause of a certain section of advocates belonging to the Telangana region of our State for posts of Law Officers in the High Court and that is why they have been implicated on false allegations. It may be noted that the demand for Telangana State or a demand for posts of Law Officers for the advocates of Telangana region are issues which cannot be discussed in these proceedings and whether it is a reason for false implication is again a matter of evidence. Even otherwise it may be noted that the charge sheet allegations relating to the entering court hall and threatening advocates in an unlawful assembly and damaging court furniture disclose the offences which are already mentioned supra. The said allegations may be true or may be false but that aspect has to be decided by the trial court and I have already given my reasons for holding so and for not interfering under Section 482 of the Code. Hence the petitioners may raise this question also in the trial court. 29. Accordingly for the aforesaid reasons this criminal petition is partly allowed only in respect of the offence punishable under Section 153-A IPC and the cognizance order of the trial court in respect of that offence alone is quashed for want of sanction of the State Government