HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL PETITION No.4309 of 2009 % Date 21-10-2010 Between: # Ch.Venkata Ramana Reddy and another. …Petitioners. And: $ The State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and another. …Respondents. ! Counsel for the petitioners: Sri C.Raghu. ^ Counsel for respondents: Additional Public Prosecutor. < GIST: >HEAD NOTE: ? Cases referred: 1. 2010 (4) U.P.L.J.39 (SC) HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4309 of 2009 Dated 21-10-2010 Between: Ch.Venkata Ramana Reddy and another. …Petitioners. And: The State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and another. …Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4309 of 2009 ORDER: The petitioners 1 and 2/A.3 and A.5 are accused of offences punishable under Sections 418, 426, 448 and 506 I.P.C. in C.C.No.526 of 2008 on the file of 4th Additional Chief Metropolitan Magistrate, Hyderabad. 2. Originally the 2nd respondent filed a private complaint before the Magistrate alleging the said offences against seven persons; and the Magistrate referred the complaint to the police for investigation under section 156 (3) Cr.P.C. Nallakunta police registered the referred complaint as case in Crime No.227 of 2007 and investigated into and after investigation, the police filed Final Report under Section 173 Cr.P.C. before the Magistrate referring the case as civil in nature. The Police served notice to the 2nd respondent simultaneously along with filing of Final Report in the lower Court. Thereupon, the 2nd respondent filed protest petition in the lower Court and it was registered as Crl.M.P.No.301 of 2008. After making enquiry into the protest petition the lower Court took cognizance of the case for the appropriate offences against the accused including the petitioners 1 and 2. 3. Two points are put forward by the petitioners’ counsel namely that the procedure adopted by the lower Court in taking cognizance of the offences on protest petition filed by the 2nd respondent which protest petition does not contain any allegations constituting the offences for which the case was taken cognizance, is not correct; and even if allegations in the original private complaint are taken into consideration, they do not constitute any offences alleged against the accused. 4. Section 190 Cr.P.C. relating to taking cognizance of offences by Magistrates, gives three methods of taking cognizance and they are: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 5. It is contended by the petitioners’ counsel that when the police referred the case without filing the Charge Sheet then the course open to the complainant is to file a 2nd complaint before the Magistrate on which the Magistrate has to make necessary enquiry contemplated under Section 202 Cr.P.C. and issue process under Section 204 Cr.P.C. after taking cognizance of the offences against the accused. Such procedure as stated by the petitioners’ counsel, is also not specifically provided by Cr.P.C. In the State of Andhra Pradesh, different procedures are being followed in different parts of the State. They are 1) by filing a protest petition against the referred Charge Sheet/Final Report filed by the police, 2) by way of filing objections to the referred Charge Sheet/Final Report filed by the police and 3) by filing a second complaint before the Magistrate disputing correctness of Final Report filed by the Police. 6. In my opinion, all the above three procedures are proper and legal. As pointed out earlier, under Section 190 (1) (a) Cr.P.C., the Magistrate can take cognizance of any offence upon receiving a complaint which constitutes such offence. It is contended by petitioners’ counsel that when once the complaint is referred to the police for investigation under Section 156 (3) Cr.P.C., it ceases to be a private complaint and becomes a First Information Report under Section 154 Cr.P.C. It is correct. But, the question now is whether the procedure adopted by the lower Court in taking cognizance of the offences after Protest Petition filed by the complainant is correct or not. At this stage, it may be noted that as per Section 190 (1) (b) Cr.P.C., the Magistrate can also take cognizance of any offence upon a police report of such facts. The said provision does not say that it should be on police report of ‘such facts “constituting the offences.” Whereas clause (a) of 190 (1) Cr.P.C. speaks about a complaint of facts “which constitute such offences”. Therefore, the Magistrate is competent to take cognizance of the offences upon a police report whether the said report is by way of a Charge Sheet or a referred Charge Sheet. Further, clause (c) of 190 (1) Cr.P.C. empowers a Magistrate to take cognizance of offences upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. In a case when the police filed referred Charge Sheet and the complainant filed protest petition, then the Magistrate records Sworn Statement of the complainant before taking cognizance of the offences. The said Sworn Statement forms part of information received by the Magistrate from any person as contemplated under Section 190 (1) (c) Cr.P.C. In this case, it is stated that after the police filed referred Charge Sheet under Section 173 (2) Cr.P.C., the 2nd respondent filed protest petition before the Magistrate and thereupon the Magistrate recorded Sworn Statement of the complainant and took cognizance of the offences against the petitioners. This Court finds that the procedure adopted by the lower Court is in accordance with Section 190 Cr.P.C. 7. In Uma Shankar Singh V. State of Bihar [1], the Supreme Court endorsed the Magistrate taking cognizance of the offences as per Section 190(1)(b) Cr.P.C. without taking recourse to any further enquiry after the C.I.D. filed final report finding allegations in F.I.R. to be incorrect, by observing as follows: “16. That is precisely what has happened in the present case. In the instant case the investigation had been handed over to the C.I.D. and both the C.I.D. and the local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the Chief Judicial Magistrate, Siwan, took cognizance of the offence under Section 302/379 IPC and Section 27 of the Arms Act against the petitioner. This is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do under Section 190(1)(b) Cr.P.C.” 8. No doubt, basis of the complaint is violation of a mutual agreement said to have been executed among the family members who are in occupation of definite and different portions of the same house property. It is alleged that in case of modifications in the portions which are in respect of occupation of the parties, such modifications shall be carried out upon mutual agreement of all the parties. It is alleged that in violation of the said agreement, there was construction of bathroom and water closet over roof of kitchen of the complainant’s mother and that there was dampening of roof and walls and dropping/leaking of water from the roof into the kitchen from bathroom and water closet. It is further alleged in the complaint that the accused are harassing the complainant by threatening him with the help of politicians and anti-social elements not to take action against them and that in 4th week of October, 2007, three persons of anti-social elements trespassed into the complainant’s house portion provoked by A.3 and A.5 and searched and inspected and that when the complainant objected for entry of outsiders into his house, A.3 did not listen to his word and the said acts are still continuing. Though original dispute among the family members and between the parties is a civil dispute, it had turned out into criminal proportion because of interference by anti-social elements who were said to have been brought by A.3 and A.5. Taking allegations in the private complaint/First Information Report on their face value, it cannot be said that dispute between the parties is purely one of civil in nature. Therefore, the lower Court rightly took cognizance of the case after recording Sworn Statement of the complainant/2nd respondent. I do not find any grounds in law to quash proceedings in the lower Court at this stage. It is for the lower Court to decide truth or otherwise of allegations of the 2nd respondent after recording evidence of both the parties during trial. 9. In the result, the Criminal Petition is dismissed. _________________________________________ Justice SAMUDRALA GOVINDARAJULU Dated 21-10-2010. Note: L.R. copies to be marked. BO Dvs HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.4309 of 2009 Dated 21-10-2010 [1] 2010 (4) U.P.L.J.39 (SC)