THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.2393 of 2007 Date of Order:17-09-2010 Between: P.Ravi Varma ..Petitioner and 1. Hanumanthu Rajgopala Rao and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY Crl.P.No.2393 of 2007 ORDER :- This petition under Section 482 Cr.P.C. is filed by the petitioner/A2 to quash the proceedings initiated against him in C.C.No.91 of 2005 pending on the file of II Metropolitan Magistrate, Visakhapatnam for the offences punishable under Sections 120-B, 109, 193, 196, 218, 357 and 500 r/w 34 of the Indian Penal Code, 1860 (for short “IPC”). The 1st respondent/complainant who was working as a Secretary of Karawela Cultural Association (Kalinga) and also Vice President of All India Communal Harmony & Social Justice Organisation and who was earlier served in the Indian Navy and after that an active participant in Congress party by doing social service, filed a private complaint alleging that A1— Singuru Mohana Rao, who was a practicing advocate and classmate of the complainant’s brother, used to visit his house; by taking acquaintance A1 gave the phone number of the complainant to various people; in the process, the complainant received various phone calls causing disturbance; some times, the calls are in vulgar language and threatening the complainant and his family members; the complainant noticed that the accused (A1) has printed the complainant’s residential phone number in his visiting cards; when the complainant called upon A1 and questioned for printing the residence number of the complainant on the visiting card without his permission, the accused (A1) bore grudge and started bad propaganda against the complainant ignoring the help extended by him. On coming to know of the same, the complainant stopped referring the legal matters to the accused. At the same time, the complainant was appointed as Special Organizing Secretary of Andhra Pradesh Congress Committee and also became in-charge of the party for Srikakulam, Vizianagaram, Visakhapatnam District and also Visakhapatnam City. Accused No.1, in order to cause damage and harm to the complainant, colluded with A3—Sampathrao Venkataraju and A4—Mojjada Satyanarayana along with some others, who are the ex-employees of Paramount Security Services, in which the complainant was one of the Directors, and opposed the election of the complainant as Secretary of Karawela Cultural Association (Kalinga Community Association) and tried their best to throw him from the Secretaryship. Earlier, A4 was the Joint Secretary of the Association, in which the complainant was the Secretary, but they could not succeed in the election conducted on 14-11-1993 under the Chairmanship of the complainant. On 23-05-1994, A1 telephoned to the complainant’s house; the personal attendant of the complainant attended the said call, wherein A1 uttered the words “Aa Lanjakoduku Rajagopala Rao Ni Pilavaraa, Vaddi Anthu Choostanu.” The same was informed to the complainant, who in turn went to III Town Police Station and lodged a complaint against the accused. On 26-05-1994, the Sub-Inspector of Police, viz., Ravi Varma, who is the petitioner herein (A2), called on the complainant at about 10 A.M. and asked him to come to the police station to enquire about the complaint lodged by him on 23-05-1994; when the complainant went to the police station at 5.15 P.M., soon after attending the B.A. examination, the petitioner (A2) without listening to the complainant’s words, hit him on the neck and unlawfully confined him in the cell by disrobing the complainant’s clothes; then A2 briefed the press with false allegations to defame the complainant, which was published in the head lines of the Andhra Jyothi newspaper on 29-05-1994, with malicious intention to lower the image of the complainant in order to support accused No.1 and to take revenge on the complainant. The petitioner (A2) abused the complainant and his family with inexplicable words, which cannot be tolerated by any civilised person. After keeping the complainant for two hours in the cell, A1 and A2 brought the complainant out of cell and enlarged him on bail. Later, the complainant came to know that A3 and A4 influenced A2 to take such drastic action against him. Hence, all the accused (A1 to A4) conspired together with a malicious intention to cause injury both mentally, politically, economically and socially. Later, the complainant was forced to resign the post of Special Organising Secretary of AP Congress Committee and also from RIOT HIT Committee. The complainant also made a complaint to the Chief Minister of Andhra Pradesh regarding the false implication of the complainant and the highhanded actions of the petitioner (A2). Thereby, the Government ordered the Director General of Police to enquire and submit the report. The complainant also made a complaint to the National Human Rights Commission against the petitioner, who in turn on 19-01-2001 directed the Commissioner of Police, Visakhapatnam to pursue the complaint and take necessary legal action against the petitioner. On the complaint made by A1, the petitioner/A2 has charge sheeted the complainant under Sections 420, 500 and 506(1) IPC, but the Court discarded Section 420 IPC and framed charges only under Sections 500 and 501 IPC against the complainant. The II Metropolitan Magistrate, Visakhapatnam acquitted the complainant for the offence under Section 501(1) IPC, but sentenced to pay a fine of Rs.1,000/- for the offence under Section 500 IPC by judgment, dated 30-01-1998. On complainant filing Crl.A.No.164 of 1998, the Metropolitan Magistrate and Sessions Judge i.e. I Additional District Judge, Visakhapatnam acquitted the complainant by allowing the appeal, by judgment, dated 07-01-2000, and set aside the conviction and sentence ordered in C.C.No.497 of 1994, dated 30-10-1998, by the II Metropolitan Magistrate, Visakhapatnam. Then, A1 preferred a revision to the High Court, which was also dismissed on 24-08-2004. A1 and A4 intentionally gave false evidence in C.C.No.497 of 1994, but failed to prove the case against the complainant, which resulted in acquittal of the complainant. Later, A1 was appointed as a Judicial Officer. In view of the acts done by him (A1) when he was an advocate, sanction under Section 197 Cr.P.C. is not necessary. The petitioner/A2 is a Sub-Inspector of Police and he has not done the said act in discharge of official duty. Stating so, the complainant prayed to take the complaint on file, cause an enquiry and punish the accused as per law. After recording the sworn statement of the complainant, the learned Magistrate took the case on file and issued process for the offences alleged. Questioning the same, the present criminal petition is filed to quash the proceedings. Sri C.Padmanabha Reddy, learned senior counsel appearing for the petitioner (A2) contended that the offence alleged against the petitioner for giving false evidence falls under Section 193 and 196 I.P.C.; since A1 gave a complaint, the petitioner registered the crime and investigated into the matter, which is an act done while discharging the official duty. Section 195(b)(1) Cr.P.C. bars taking cognizance of the offence, except on the complaint in writing by that court where the evidence has been let in. For the offences under Sections 218 and 357 IPC imprisonment is three years and one year or with fine or with both respectively. When the offence took place in the year 1994, the complaint was made in 2004, which is barred by limitation and the same cannot be taken cognizance. Therefore, the Magistrate committed an error in taking cognizance for the offence under Sections 193, 196, 218 and 357 IPC and the same is liable to be quashed. The complainant, who appeared as party-in-person, contends that on A1 making a counter complaint on 25-05-1994, to know about the complaint made by the complainant on 23-05-1994, petitioner/A2 called him to police station and hit on the neck and put him in cell by disrobing the clothes which was videographed by the T.V., which are not in discharge of official duties. When the petitioner/A2 exceeded his powers, he cannot claim protection under Section 197 Cr.P.C., as held by this Court in Reddy Srinivasa Rao vs. State of A.P.[1]. He further contends that the offences under Sections 193 and 196 IPC are against A3 and A4, which were created by A2 for fixing the complainant to take vengeance of A1. Therefore, the proceedings cannot be quashed and the complainant should be given an opportunity to prove the case against the accused. In support of his submissions, he placed reliance on the following judgments: 1. K.M.Mathew v. K.A.Abraham and others[2] 2. Swapan Sarkar v. Santanu Bhowmik [3] 3. Reddy Srinivasa Rao v. State of A.P. In the complaint allegations and the sworn statement of the complainant, on which basis the case was taken on file for the offences under Sections 500, 357, 218, 196, 193, 109, 120-B r/w 34 IPC against A1 to A4, it is pleaded that the sanction for prosecution of A1 and A2 under Section 197 Cr.P.C. is not necessary, on the ground that A1 was not a judicial officer at the time of committing the offence and A2/petitioner herein acted illegally and wrongfully detained the complainant and assaulted, hit the complainant on neck and disrobed the clothes and put him in the cell by uttering filthy language and briefed the press with false allegations and defamed the complainant, which was published in the headlines of Andhra Jyothi Newspaper on 29.05.1994, with malicious intention in order to support A1 to taken vengeance on the complainant. This Court in Reddy Srinivasa Rao (1 supra), categorically held that the acts attributed to the accused-S.I. of police viz., 1) Vulgarly and provokingly abused the complainant in the presence of others, 2) Wrongful detention of the complainant in the police station, and 3) Pushing the complainant resulting in injuries and beating with a stick and the said acts attributed to the complainant, which are foundation for criminal prosecution against the accused, cannot be said to have any nexus with the duties to be performed by the accused/Sub-Inspector of Police. Mere contemporaniety of the alleged criminal acts with official duties does not attract the protection under Section 197 Cr.P.C. and accordingly refused to quash the complaint. The Hon’ble Supreme Court in K.M.Mathew’s case (2 supra) held that the inherent power of the high court under Section 482 Cr.P.C. should be very sparingly and cautiously used and only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of court, if such powers is not exercised. So far as the order of cognizance by the Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie evidence is made out. (See State of Bihar v. Rajendra Agarwalla (1996) 8 SCC 164) and accordingly refused to quash the proceedings. The other decision relied on by the learned counsel for the respondents, reported in Swapan Sarkar’s case (3 supra) does not apply to the facts of the present case. Since the complaint allegations along with the sworn statement of the complainant together disclose that the petitioner exceeded his authority and the acts alleged to have been committed by him are prima facie not in discharge of his official duty. The protection under Section 197 Cr.P.C. is available only when the alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing objectionable act. Since the alleged acts amounts to defamation of the complainant for the offences punishable under Sections 500, 506(II) IPC, 357 and 218 IPC only, the complainant should be given an opportunity to prove his case against the petitioner for the above offences. Hence, it is not a fit case to quash the proceedings at the initial stage. However, considering the allegations made in the complaint, the petitioner cannot be prosecuted for the offences under Sections 193 and 196 IPC, as the false evidence is alleged against A1 and A4 only and hence, the complaint insofar as Sections 193 and 196 IPC against the petitioner, is quashed. The Criminal Petition is, accordingly, partly allowed. _________________ A.GOPAL REDDY, J 17-09-2010 Lmv [1] 2000 ALT (Crl.) 227 [2] 2002 (8) SCJ 395 [3] 2005(1) ALT (Crl.) 19