THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.7031 of 2008 Date:28th December, 2011 Between: Konda Chandra Mohan Reddy (A1) & Ors. ....Petitioners/A1 to A5 And T.R.Param Jyothi S/o.Subramanyam & Anr. ....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.7031 of 2008 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C. by A1 to A5 in P.R.C.No.39 of 2008 on the file of II Additional Judicial Magistrate of First Class, Nellore, to quash the proceeding therein. 2. Background facts, in a nutshell, leading filing of this Criminal Petition by A1 to A5 in P.R.C.No.39 of 2008 are: T.R.Param Jyothi purchased 35 Ankanams and 10 sq. feet from one Sk.Mahammada Begum under a registered sale deed, dated 09.03.2002. He also purchased 10 Ankanams from one Khalil Ahamed under a registered sale deed, dated 05.02.2004. Thus, he acquired total extent of 45 Ankanams and 10 sq. feet of house site. He constructed a house and performed house warming function on 21.01.2005. He engaged Kuncham Venkataiah and his wife Kuncham Bujjamma to watch the newly constructed house. On 09.05.2005 he along with his wife went to New Delhi and other important places as a visit. On 13.05.2005 A1 to A4 along with 40 others trespassed into the compound of the house and damaged eastern side compound wall and northern side compound wall to some extent. They also damaged the flooring of the house with the help of proclain bearing No.AP 26 K 8156. A1 to A4 and others allegedly came on two tractors/trailors bearing Nos.AP 26 D 6818, 6819 and AP 26 F 1960, 1961. A1 to A4 abused Kuncham Venkataiah and his wife Bujjamma in the name of their caste. After demolishing the compound wall, the accused created iron fencing with the help of cudgels encroaching a part of the compound wall of the house. Macherla Surendra Babu has video graphed the incident. The watchman Venkataiah accompanied by K.Sukumar went to the I Town Police Station (Law and Order), Nellore, and presented a report. But the police did not take any action. The complainant returned to Nellore on 25.05.2005 and observed the damage caused to his house and learnt the incident from the Watchman-Venkataiah. He approached I Town Police Station (Law and Order), Nellore, and requested the Station House Officer, to take necessary action against the culprits. There being no response from the Station House Officer, he presented a complaint before II Additional Judicial Magistrate of First Class, Nellore. The learned Magistrate forwarded the complaint to the Station House Officer, I Town Police Station (Law and Order), Nellore. Thereupon, the Station House Officer, registered a case in Crime No.152 of 2005 for the offences under Sections 120-B, 341, 427, 452 r/w.149 IPC and Section 3(1)(iv), (x) and (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Sub-Divisional Police Officer, Nellore, took up the investigation. His investigation revealed that the complainant deliberately encroached 4 Ankanams of land owned by K.Swarnalatha- 5th petitioner herein, apart from 10 Ankanams of disputed land. Accordingly, he filed a final report referring the case as false. The complainant filed a protest petition before the II Additional Judicial Magistrate of First Class, Nellore. In the protest petition, the complainant included Konda Swarnalatha, who is the 5th petitioner herein, as A5. The averment in the protest petition relatable to the 5th petitioner herein reads as hereunder: “The complainant submits that after filing the said complaint the accused No.5 filed a caveat petition before the Prl. Senior Civil Judge, Nellore, wherein she admitted that she got removed the construction of the complainant with the help of her relatives. Hence, she is also implicated in this complaint as 5th accused. As per her own admission she committed the offences along with the other accused.” The learned Magistrate recorded the sworn statements of the complainant and 3 other witnesses viz., Kuncham Venkataiah, Kuncham Bujjemma and Thota Madhumohan. Basing on the sworn statements of the witnesses, the learned Magistrate took cognizance for the offences punishable under Sections 120-B, 341, 427, 452 r/w.149 IPC and Sections 3(1)(iv), (x) and (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and issued NBWs against A1 to A5. Hence, this Criminal Petition by A1 to A5 seeking the prayer stated supra. 3. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the petitioners and Sri A.Suryanarayana, learned counsel appearing for the 1st respondent/complainant and learned Additional Public Prosecutor, appearing for the 2nd respondent/State. 4. Learned Senior Counsel appearing for the petitioners submits that the Sub-Divisional Police Officer, Nellore, recorded the statements of witnesses and verified the documents placed before him and came to the conclusion that it is the 1st respondent/complainant who encroached the site owned by the 5th petitioner and constructed the compound wall, in which case, it is impermissible for the 1st respondent/ complainant to contend that the petitioners trespassed into his site and demolished eastern side compound wall and northern side compound wall. He would further submit that the 1st respondent/complainant in the complaint presented by him before II Additional Judicial Magistrate of First Class, Nellore, on 08.06.2005 did not whisper the participation of the 5th petitioner herein and therefore, continuance of proceedings against the 5th petitioner in P.R.C.No.39 of 2008, which arises out of the protest petition, amounts to abuse of process of court. A further contention has been advanced by the learned senior counsel that the dispute between the parties has been ceased of by the civil Court in view of the fact of pendency of O.S.No.205 of 2005 and O.S.60 of 2008, and therefore, continuance of criminal proceedings in respect of the same dispute against the petitioners amounts to abuse of process of law. Learned senior counsel would submit that the learned Magistrate on taking cognizance for the offences punishable under Sections 120-B, 341, 427, 452 r/w.149IPC and Section 3(1)(iv), (x) and (xv) of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, ought to have issued summons instead of NBWs against the petitioners/accused. In support of his submission, reliance has been placed on the judgment of the Supreme Court in Inder Mohan Goswami v. State of Utteranchal[1], wherein it has been held that though there cannot be any straitjacket formula for issuance of warrants, generally issuance of NBW should be avoided unless the accused is charged with a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law. 5. Per contra, learned counsel appearing for the 1st respondent/complainant submits that the Sub-Divisional Police Officer, Nellore, has gone beyond the scope of the complaint in observing that the 1st respondent/complainant encroached 10 Ankanams of the site owned by the 5th petitioner and that the final report is a reflection of one sided version and therefore, any observations made by the Sub- Divisional Police Officer in the final report needs no consideration at this stage. He would also submit that the sworn statements of Kuncham Venkataiah, Kuncham Bujjamma, and Thota Madhumohan recorded by II Additional Judicial Magistrate of First Class, Nellore, amply prove that on 13.05.2005 the accused trespassed into the house of the 1st respondent/complainant and damaged the compound walls as well as flooring of the house. The learned counsel refers the sworn statement of Kuncham Venkataiah and Kuncham Bujjamma in support of his submissions. 6. I have given my anxious consideration to the contentions advanced by the learned counsel appearing for the parties. The 1st respondent/complainant presented a complaint before the learned II Additional Judicial Magistrate of First Class, Nellore, on 08.06.2005. He stated in the complaint that the petitioners 1 to 4 and 40 others trespassed into his house and damaged the compound walls and flooring of the house. The name of the 5th petitioner was not mentioned in the complaint. Even the eyewitnesses to the incident did not mention the name of the 5th petitioner as one among the persons, who caused damage to the compound walls and flooring of the house owned by the 1st respondent/complainant. For the first time, in the protest petition filed on 17.04.2006, the 1st respondent/complainant made an averment that the 5th petitioner filed a caveat petition before the Principal Senior Civil Judge, Nellore, wherein she stated to have mentioned about removal of the constructions with the help of her relatives. The question is whether such an averment in the caveat petition by the 5th petitioner can be a ground to implicate her in the array of accused. In my considered opinion, the admission, if any made by the 5th petitioner in the caveat petition with regard to removal of constructions, cannot be a ground to implicate her as one of the accused in the incident said to have occurred on 13.05.2005. Therefore, the continuation of proceedings against the 5th petitioner in P.R.C.No.39 of 2008 amounts to abuse of process of law. 7. With regard to the other petitioners, the case of the 1st respondent/complainant is consistent that he came to know from the watchman-Kuncham Venkataiah that they along with 40 others trespassed into the compound of his house and demolished the compound walls apart from causing damage to the flooring of the house. The sworn statements of Kuncham Venkataiah and Kuncham Bujjamma speak of their being abused in the name of their caste by the petitioners 1 to 4. At this stage, the sworn statements of Kuncham Venkataiah and Kuncham Bujjamma cannot be ignored. They categorically stated that they have been abused in the name of their caste. Therefore, there are no justifiable grounds to quash the proceedings against the petitioners 1 to 4 in P.R.C.No.39 of 2008 on the file of II Additional Judicial Magistrate of First Class, Nellore. However, in the given facts and circumstances, issuance of NBWs against the petitioners/accused by the learned II Additional Judicial Magistrate of First Class, Nellore, cannot be sustained. Instead issuance of bailable warrants would meet the ends of justice. 8. Accordingly, the Criminal Petition is partly allowed quashing the proceedings in P.R.C.No.39 of 2008 on the file of II Additional Judicial Magistrate of First Class, Nellore, against the 5th petitioner/A5 alone. The Criminal Petition with regard to the others i.e. petitioners 1 to 4 is dismissed. However, the order of the learned Magistrate in issuing NBWs against the petitioners 1 to 4 (A1 to A4) is modified to that of Bailable Warrants. ______________________ B.SESHASAYANA REDDY, J. Date: 28th December, 2011. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.7031 of 2008 Date:28th December, 2011 [1] (2008) 1 SCC (Cri) 259