IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETRITION NO:208 OF 2008 DATED:14.12.2011 BETWEEN VANKAYALAPATI SRINIVAS ... PETITIONER AND GUDAVARAPU PRAJAPATHIRAO & ANOTHER ...RESPONDENTS The Court made the following order: THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETRITION NO:208 OF 2008 ORDER: The Sub Inspector of Police, (Law and Order), Suryapet Police station, Vijayawada laid chargesheet against six accused. So far as A1 is concerned, it is alleged that A1 was guilty of the offence under section 120 B of the Indian Penal Code.The charge sheet was numbered as C.C.No 601 of 2007 by the learned Additional Metropolitan Magistrate, Vizayawada. A1 laid this petition seeking to quash the proceedings against him. Sri K.Raja Reddy, the learned counsel for A1 contended that there was no prima facie proof of the commission of the offence either from the F.I.R or from the section 161 Cr.P.C statements of the witnesses and that absolutely, there is no reason to initiate the criminal proceedings against A1. The facts which are not in controversy are: “A1 has been working as a Lecturer in Sathavahana college at Vizayawada. The 1st respondent who is the de facto complainant is the Secretary and Correspondent of the said college. On 24.03.2006, by about 7.15 P.M., A1 and 1st respondent were seated in the office room of the college and were chit chatting. At that time, three young boys entered the office room with cricket stumps. They beat A1 and the 1st respondent and went away from the scene of attack. A1 and the 1st respondent went to the hospital for treatment. On hospital intimation, the Sub Inspector of Police (L.W.13) went to the hospital and obtained a written complaint from the 1st respondent. He registered the complaint as F.I.R in Cr.No 73 of 2006. During the course of investigation, the S.I of Police considered that A1 also conspired in the attack against the 1st respondent and laid charge sheet against the accused including A1. These are the admitted facts” Five witnesses were examined by the police to speak about the incident proper including the 1st respondent. None of them speak about the complicity of A1 in the commission of offence. Added to it, the First Information Report also does not refer to the name of A1 as a supporter in the attack against the 1st respondent. Smt.Zareena Afsar, learned counsel representing the Additional Public Prosecutor, however, pointed out that the police considered the complicity of A1 in the commission of offence from the fact that at the time of receiving the blows from the culprits, A1 did not raise any alarm and that A1 did not try to stop or apprehend any of the accused. She also pointed out that the Cell Phone of A1 contained an outgoing call to 2nd accused so much so, the Sub Inspector of Police considered that A1 conspired with the other accused in the attack against the 1st respondent. She submitted that whether the case ultimately is made out or not is a matter of evidence and that the case against A1, however, cannot be quashed at this stage. She also pointed out that A1 confessed regarding his participation in the attack against the 1st respondent through a confession. The learned counsel for A1 placed reliance upon Commissioner of Police, Delhi vs. Narender Singh ([1]). In that case, the Supreme Court observed that although there is some difference in section 25 and 26 of the Evidence Act, the policy underlying the two sections is one and the same and that the confessions whenever and wherever made to police or while in the custody of the police to any person whomsoever, should be presumed to have been obtained under the circumstances mentioned in section 24 of the Evidence Act and that such confessions are inadmissible. Sri K.Raja Reddy, learned counsel for the petitioner is correct in pointing out that the alleged confession by A1 regarding his complicity in the commission of offence is inadmissible and that a conviction cannot be based upon such a confessional statement. Whether the case is made out is the question. The learned counsel for A1 placed reliance upon Madhavarao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre ([2]). In that case, it was observed: “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations haves made prima facie establish the offence. It is also for the Court to take into consideration any special features, which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” On the basis of this decision, it is contended that the Court could not convict A1 from the available evidence and that A1 consequently is entitled to seek for quashment of the charge sheet against him. The Supreme Court stated that the test for quashment is whether the uncontroverted allegations prima facie establish or not. In the present case, A1 was with the 1st respondent at the time of commission of offence. The 1st respondent did not allege any overt act or suspicious conduct to the A1 in the complaint. A1’s name does not figure as an accused in the First Information Report. The material witnesses in their section 161 Cr.P.C statements did not point out showing finger at the 1st accused. These circumstances establish that prima facie case is not made out against A1. I wholly agree with the contention of the learned counsel for A1 that this is a fit case where the charge sheet is liable to be quashed as against A1. As the prima facie case is not made out against A1 from the complaint, from the First Information Report and from section 161 Cr.P.C statements of the material witnesses and where the confessional statement of the 1st accused is inadmissible, I hold that the prima facie case is not made out against A1. Consequently, the charge sheet against A1 in C.C.No:601 of 2007 is hereby quashed. The criminal petition accordingly, is allowed. ___________________ JUSTICE K.G.SHANKAR DATED:14.12.2011 GURC THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETRITION NO:208 OF 2008 DATED:14.12.2011 [1] A.I.R. 2006 S.C. 1800 [2] 1988 (1) SCC 692