Smt. B. Savithri v. The State Of Andhra Pradesh

HON'BLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL PETITION No.11418 of 2018 ORDER:

The petitioner is the complainant in CFR.No.1728 of 2017 pending on the file of Judicial First Class Magistrate, Yemmiganur. Same is a protest petition in crime No.151 of 2015 of Yemmiganur Police Station registered against accused 1 to 4 and the police after investigation filed final referred report. Aggrieved thereby the protest petition is filed. The learned Magistrate after recording sworn statements of defacto complainant/protest petitioner and another witnesses as PWs.1 & 2, dismissed the protest petition for no grounds to issue process under Section 203 Cr.P.C. by order dated 21.12.2017. Same is the subject matter of present impugnment.

2. The contentions in the present petition are that the learned Magistrate's order of rejection of taking cognizance of protest is contrary to law and against facts on record, learned Magistrate failed to see that basing on the private complaint filed by the petitioner referred to police for investigation crime No.151 of 2015 was registered against 4 accused. It is in regard to the demolition of the sunshade by the accused the police went wrong in saying dispute of civil nature and learned Magistrate gravely erred in holding it is a dispute of civil nature converted into criminal case because of civil remedies time consuming so that under the guise of criminal

proceedings to get early settlement without there being any basis for so holding including as to as if no prima facie case against the proposed accused in non-issuance of process and said order of the learned Magistrate is liable to be set aside.

3. The sum and substance of the accusation in the protest petition of the defacto complainant aggrieved by the police referred report is that the petitioner-complainant is owner of house No.1/3247 of SMT colony, Yemmiganur, which she constructed after purchased the site part of 2 acres in S.No.44/B by registered sale deed dated 22.04.1986 from Mirja Suleman Baig of Yemmiganur, after obtained Yemmiganur municipality approved plan covered by proceedings dated 30.03.1996 for the house constructed and municipality also assessed the property tax with house No.1/3247. The tenants are staying therein as complainant shifted her residence to Hyderabad in the year 2000. While so, on 24.02.2015 A.1 to A.

Rs.40,000/-. A.1 to A.4 also encroached the site to an extent of 27x3 feet open space towards south of the complainant's house by erection of cuddapah slabs. On information of the tenants to the complainant over phone, complainant with his son Kiran Kumar came to Yemmiganur on 25.02.2015 and observed the illegal demolition supra and also enquired with the tenants and taken photographs of the property damaged supra and went to Yemmiganur Town Police and lodged oral complaint, police did not take action and when again approached by complainant 3 days prior to the filing of the private complaint, police informed as dispute civil in nature it is outcome of the political influence of A.1 to A.4. Hence filed private complaint and the learned Magistrate referred to police for investigation from which the police registered the crime No.

151/2015 for the offences punishable under Sections 427, 448, 506 r/w 34 IPC and served a notice informing that A.1 was deleted from the array of FIR under investigation which is intentional and deliberate though A.1 present along with A.2 to A.4 in the occurrence and damaged the sunshade of the house of the complainant despite complainant and other witnesses stated about presence of A.1 also and thereby it is just and necessary to include A.1 also in the police final report along with A.2 to A.4. Thus the protest is against non-charging of A.1 by deletion of her name from the array.

4. The order of the learned Magistrate shows from the statement of PWs.1 & 2 the acts of the accused alleged to be civil in nature of the alleged occurrence on 24.02.2015 of alleged entering the property and demolished the sunshade which is in the disputed property. It is observed that there is tendency of growing civil disputes and converting into criminal case on account of frivolous impression of civil remedies consuming time and if entangled criminal prosecution likelihood of settlement through pressure. A perusal of the sworn statements of PWs.1 & 2 reveals the matter of civil nature and evidence no way reveals the ingredients and no prima facie case to proceed against the accused as A.1 to face trial and thereby dismissed the complaint.

5. In the petition there is no other material filed as to what was the original private complaint averment and what was the police final report with reference to how many witnesses examined and what statements given and on what basis of the photos as to alleged demolition if at all in the property form part of the complainant that shown in dispute from the police investigation. Even the sworn statements of PWs.1 & 2 recorded by the learned Magistrate on the protest petition not submitted in the protest petition in assailing the correctness of the order of the learned Magistrate which no doubt no way discussed what PWs.1 & 2 stated.

6. In fact it shall not be a fresh private complaint, but for a protest to show how the earlier investigation is faulty while charge sheeting A.2 to A.4 in not charge sheeting A.1 without showing such basis of investigation faulty as she also to be charged, there is no question of taking on protest cognizance.

7. Having regard to the above, the Criminal Petition can be disposed of with observation that during trial from any evidence if at all brought on record the role of A.1 also, A.1 can be impleaded under Section 319 Cr.P.C. as per the guidelines of the Apex Court in Hardeep Singh Vs. State of Punjab1.

8. Accordingly and in the result, this Criminal Petition is disposed of.

Miscellaneous petitions, if any, shall stand closed. _______________________________ Dr. B. SIVA SANKARA RAO, J Date: 20.12.2018 ska 1 2014 (3) SCC 92