THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3115 of 2008 (Dated : 12-08-2010) Between: Makena Rajeswara Prasad, Chintalapalem village, Kothavalasa Mandal, Vizianagaram District and others …Petitioners A n d The State of A.P. rep. By The Public Prosecutor, High Court of A.P. Hyd. and others ..Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3115 of 2008 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C by the accused in C.C.No.166 of 2007 on the file of Judicial First Class Magistrate, at Kothavalasa with a prayer to quash the proceedings therein. 2. The 2nd respondent Palamarasetti Kanaka W/o Ramu @ Rama Rao filed a complaint before the Judicial First Class Magistrate, at Kothavalasa alleging inter alia that her mother-in- law Smt. Polemarasetti Pydamma W/o Appa Rao @ Ayyanna purchased Ac.0-40 cents of land situated in Survey No.246/7 of Chintalapalem village, by way of a registered sale deed from late Jami Ramulu. Smt. Polamarasetti Kanaka executed a Will bequeathing the said land in favour of her husband, namely, Ramu @ Rama Rao. Petitioners 1 and 3, namely, Makena Rajeswara Prasad and Alla Rama Rao approached the 2nd respondent and her husband in the month of January, 2006 and proposed to purchase the said land. The deal was struck and thereupon, an agreement was executed in favour of Voluri Suryabhagavanulu S/o Sree Ramamurthy of Paturu village at the instance of petitioners 1 and 3. At the time of execution of the document, petitioners 1 and 3 took away the Will deed executed by Smt. Polamarasetti Pydamma in favour of her husband. Her husband executed the sale deed in favour of V.Surya Bhagavanulu for 30 cents. Her husband retained Ac.10 cents out of Ac.0-40 cents. On 18.9.2007, she went to the land along with Jami Ramulu for plantation of sugar cane. The petitioners herein trespassed in to the land and prevented her from planting sugar cane. When she questioned the accused, they abused her in filthy language and demanded her to leave the land once for all. It is further alleged that the accused pulled her by catching her tuft and helm of her saree and thereby, outraged her modesty. All through, petitioner No.1 was exhorting petitioners 2 to 7 to do away her. She submitted a report at Kothavalasa P.S against the petitioners. There being no action on the part of the police, she filed a complaint before the Judicial First Class Magistrate, Kothavalasa. 3. The learned Magistrate recorded the sworn statement of the complainant and two more witnesses and took cognizance for the offences under Sections 447 and 323 IPC against the petitioners and issued summons. Hence, this Criminal Petition by the petitioners-accused with a prayer stated supra. 4. Heard learned counsel appearing for the petitioners and learned Additional Public Prosecutor appearing for the 1st respondent and learned counsel appearing for the 2nd respondent. 5. Learned counsel appearing for the petitioners submits that the husband of the 2nd respondent-complainant owned Ac.0-30 cents in Sy.No.246/7 and sold the same in favour of the 2nd petitioner. No part of the land had been retained by the husband of the 2nd respondent-complainant and therefore, the question of the petitioners interfering with the possession of the complainant- 2nd respondent does not arise. The registered sale deed executed by the husband of the complainant and others has been placed on record. It is evident from the sale deed that whatever extent the husband of the complainant and his brothers got in Survey No.246/7 had been conveyed to the 2nd petitioner. The contention of the 2nd respondent-complainant that her husband retained Ac.0-10 cents out of 40 cents in Survey No.246/7 has not been stated in the sale deed. The total extent of Sy. No.246/7 is Ac.0-30 cents and the same has been conveyed to the 2nd petitioner under sale deed dated 16.3.2006. When total extent in survey No.246/7 has been conveyed, the question of the husband of the complainant retaining 10 cents out of 40 cents in the said Survey Number does not arise. The substratum of the version of the complainant is not substantiated by the recitals of the sale deed dated 16.3.2006. 6. Learned counsel appearing for the 2nd respondent submits that the husband of the 2nd respondent owned Ac.0.40 cents and out of which only Ac.0.30 cents have been sold while retaining Ac.0.10 cents and in which case, the petition filed by the petitioners is liable to be dismissed. In support of his submission, reliance has been placed on the judgment of the Supreme Court in State of Madhya Pradesh v. Awadh Kishore Gupta[1]. Much emphasis has been laid on para.13 of the judgment, which reads as hereunder: “( 13 ). It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a n latter for trial. While exercising jurisdiction under section 482 of the Code, it is not permissible for the court to act as if it was a trial judge. Even when charge is framed at that stage, the court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the court can evaluate material and documents on records but it cannot appreciate evidence. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.)v. Jawahar Lal and Ors. , it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The court should not act on annexures to the petitions under section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (crime no. 116/94) registered by the Special Police Establishment, Lokayukt, Gwalior. We set aside the impugned judgment. The state shall be at liberty to proceed in the matter further” By referring the above judgment, the learned counsel appearing for the 2nd respondent contends that it is for the investigating authority to decide as to which side of the land the husband of the 2nd respondent retained Ac.0.10 cents out of Ac.0.40 cents of land. 7. The scope of Judicial intervention by the High Courts in exercise of their extraordinary powers under Article 226 of the Constitution of India or inherent powers under Section 482 Cr.P.C., is well delineated by the Apex Court in a plethora of judicial precedents. 8. In STATE OF HARYANA & OTHERS V. BHAJAN LAL & OTHERS[2], the Supreme Court laid down broad guidelines in this regard and they are as follows:- “1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”. 9. In STATE OF ORISSA V. SAROJ KUMAR SAHOO[3], the Supreme Court while dealing with the scope of exercise of power under Section 482 Cr.P.C. by the High Courts held that it envisages three circumstances under which the inherent jurisdiction may be exercised, viz., (i) to give effect to an order under Cr.P.C; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is also held that inherent jurisdiction under the said provision, though wide, has to be exercised sparingly, carefully and with caution, and only when such exercise is justified by the tests specifically laid down in the section itself; authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has the power to prevent abuse; and that the High Court in exercise of its powers is justified to quash any proceedings if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. 10. In STATE OF KARNATAKA V. M.DEVENDRAPPA[4], the Supreme Court held that in a proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive and if the allegations set out in the complaint do not constitute an offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. 11. Keeping in view the above said settled legal principles, if the complaint filed by the 2nd respondent is examined, the only reasonable conclusion that can be arrived at is that the 2nd respondent-complainant initiated proceedings without placing any material on record that her husband retained Ac.0-10 cents of land after executing a registered sale deed dated 16.3.2006 in favour of the petitioners. The recitals of the document dated 16.3.2006 do not indicate that the husband of the complainant retained Ac.0-10 cents in Survey No.246/7. In that view of the matter, continuance of proceedings in C.C.No.166 of 2007 on the file of the Judicial First Class Magistrate at Kothavalasa against the petitioners amounts to abuse of process of Court and accordingly, they are hereby quashed. 11. In the result, the Criminal Petition is allowed. _____________________ B.SESHASAYANA REDDY, J Dt.12-08-2010 Note:- Issue CC within a week (B/o) RAR/cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.3115 of 2008 (Dated : 12-08-2010) [1] 2004(1) ALD (Crl.) 690 (SC) [2] 1992 Suppl. (1) SCC 335 [3] (2005) 13 SCC 540 [4] 2002(1) ALD (Crl.) 412=(2002) # SCC 89