HON’BLE SRI JUSTICE A. GOPAL REDDY CRIMINAL PETITION No.5519 OF 2007 DATE:30-09-2010 BETWEEN K.V.Narayana …Petitioner AND State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad & Another. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CRIMINAL PETITION No.5519 OF 2007 ORDER: This petition under Section 482 of Code of Criminal Procedure has been filed to quash the proceedings in C.C.No.1043 of 2006 pending on the file of Additional Judicial First Class Magistrate, Chilakaluripet, wherein the petitioner was charged for the offences punishable under Sections 343, 344 and 365 I.P.C. The second respondent-complainant got issued a telegram on 31.1.2006 to the Additional Judicial First Class Magistrate, Chilakaluripet alleging that her mother-Mahalakshmi and grandmother-Dhanamma were illegally confined by the petitioner herein, who is the Sub-Inspector of Police of Chilakaluripet Police Station, from 20.1.2006 onwards. Apart from sending the said telegram, the second respondent-complainant, who was aged about 15 years, appeared before the Court and filed a complaint stating that she is apprehending danger to the lives of her mother and grandmother in the hands of the petitioner-police. On receipt of the telegram and the complaint, the learned Magistrate issued a search warrant and appointed one K.Venkata Ramana, Advocate as commissioner to search the police station. The said Commissioner visited the police station in execution of the warrant at 12.30 noon, by which time, the petitioner-Sub-Inspector of Police was not available. He found the alleged detenues in the police station and when questioned, the Assistant Sub-Inspector of Police informed him that they were arrested at 8.00 a.m. on 31.1.2006 in connection with Crime No.19 of 2006 registered on 21.1.2006 for the offences punishable under Sections 108, 114, 120-B, 420, 406 IPC and Sections 3 and 4 of Money Circulation (Banning) Closed Act and Section 5 of Protection of Depositors of Financial Establishment Act. When the Advocate- Commissioner called upon the police personnel of the said station to show the General Diary to know the making of entry about the arrest of the alleged detenues in the said crime, it was not shown to him. After some time, the petitioner, who was the Station House Officer came to the station, confirmed the arrest of the alleged detenues at 11.00 a.m. and he endorsed the same on the warrant and produced the detenues before the Commissioner. On the report submitted by the Commissioner, when an explanation was called for, the petitioner filed an explanation after one month stating that on the report given by one Vemulakonda Sridevi and some others, he registered a case in Crime No.19 of 2006 against the alleged detenues on 21.1.2006, took up the investigation, arrested the alleged detenues at 11.15 a.m. on 31.1.2006 but not on 21.1.2006 as alleged in the telegram. Further, the petitioner levelled certain allegations against the Advocate- Commissioner in connection with a previous case, which are not relevant for the purpose of the present case. After filing the report by the Advocate-Commissioner, the complainant-second respondent herein examined herself as P.W.1 apart from examining P.Ws.2 to 9 and marked Exs.P.1 to P.5. After evaluating the evidence brought on record, the learned Magistrate has not believed the explanation offered by the petitioner that the alleged detenues were arrested only on 31.1.2006 at 11.00 a.m. in connection with Crime No.19 of 2006 as the said arrest of the alleged detenues is not in compliance with the mandate contemplated under Section 58 and 50 Cr.P.C. As the complainant and the witnesses examined on her behalf unanimously spoke about the arrest of the said detenues on 21.1.2006 and as the petitioner failed to comply with the mandatory provision under Section 57 of Cr.P.C. for producing the detenues before the Magistrate and as the evidence of Commissioner shows that the petitioner has not shown the General Diary, arrest card of remand report at the time of his visit, the learned Magistrate came to the conclusion that the alleged detenues were not arrested on 31.1.2006 as alleged by the petitioner but were arrested on 21.1.2006. The learned Magistrate came to the conclusion that while arresting the alleged detenues, the petitioner has not followed the guidelines issued by the Supreme Court in D.K.Basu v. State of West Bengal[1]. It was further observed that the contents of F.I.R. in Crime No.19 of 2006 disclose that there are some transactions regarding the chit between the defacto complainant and others and no scrap of paper was filed by the petitioner evidencing that the alleged detenues who are accused therein, maintained financial establishments and were circulating the money to attract the provisions under Act, 17 of 1999 and that the mentioning of provisions under Sections 3 and 4 of Money Circulation Act and Protection of Depositors Establishment Act by the petitioner are exaggeration. Therefore, considering all the above aspects, the learned Magistrate, by order, dated 12.6.2006 in Crl.M.P.No.268 of 2006 prima facie concluded that the petitioner had illegally confined the alleged detenues in the police station from 21.1.2006 to 31.1.2006. In view of the said order, the complaint was taken on file against the petitioner for the offences as aforementioned, which is now sought to be quashed. Learned counsel for the petitioner contends that the acts done by the petitioner are during the course of discharge of his official duty in connection with registration of Crime No.19 of 2006 and therefore, unless necessary sanction has been obtained under Section 197 Cr.P.C., the Magistrate cannot take cognizance of the offence against the petitioner. In support of the said contention, the learned counsel placed reliance on a decision of Apex Court in State of Orissa and Others v. Ganesh Chandra Jew[2]. Under Ex.P.1, warrant of arrest, it was shown that the mother and grandmother of the complainant were arrested on 31.1.2006 at 11.00 a.m., but in support of the same, the petitioner failed to produce the entry in the General Diary. Further the evidence of the prosecution witnesses discloses that the mother and the grandmother of the complainant were arrested on 20.1.2006 at 2.00 a.m. without there being any arrest warrant, for which the arrest warrant obtained under Ex.P.1 is only dated 31.1.2006. Therefore, the arrest of the accused in Crime No.19 of 2006 on 20.1.2006 by the petitioner is not in discharge of the official duties as contended by the learned counsel for the petitioner. Whether the said act was done in discharge of the official duty or in excess of the official duty, is a mixed question of fact and law. If the petitioner exceeded his jurisdiction and confined the accused depriving them of their valuable right under Article 21 of Constitution of India, then he cannot plead such deprivation is in discharge of the official duty, which are all the matters that can be gone into on the basis of the evidence adduced by the prosecution. In view of the same, it is not a fit case where this Court can scuttle the enquiry at the initial stage. In the result, the Criminal Petition is dismissed. _________________ A. GOPAL REDDY, J. SEPTEMBER 30, 2010 Tsr. [1] AIR 1997 SC 610 [2] AIR 2004 SC 2179