Tirmulasheety Sairam v. The State Of A.P
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL PETITION NO.9986 OF 2017 ORDER:
This criminal petition is filed under Section 482 of Criminal Procedure Code (for short "Cr.P.C.") to quash the proceedings in Crime No.285 of 2017 on the file of Kothapet Police Station, Guntur Urban District, registered for the offences punishable under Sections 354-D, 506, 509 r/w 34 IPC, based on the complaint lodged by the second respondent, on the ground that the allegations made in the complaint would not disclose commission of any offence and that the offences punishable under Section 506 IPC are only non-cognizable offence and the police cannot investigate into such offences without permission of the Magistrate having jurisdiction over the area.
Therefore, investigation undertaken by the first respondent, based on the report lodged by the second respondent is illegal.
During hearing, learned counsel for the petitioners Sri Raja Reddy Koneti contended that the allegations in the report lodged with the police by the second respondent does not disclose any of the ingredients to constitute an offence punishable under Section 354-D & 506 IPC. The allegations pertaining to an offence punishable under Section 506 IPC are far from truth and imaginary and in the absence of any details and based on the vague allegations made in the complaint, the first respondent cannot proceed to investigate against these petitioners for the
offences mentioned supra and thereby requested this Court to quash the proceedings.
Learned Public Prosecutor for the State of Andhra Pradesh contended that the allegations disclosed commission of cognizable offence, even otherwise, when the petitioners allegedly committed both cognizable and non-cognizable offences, still the first respondent/investigating agency without obtaining any permission from the Magistrate can proceed to investigate, in view of Section 155(4) of Cr.P.C. Therefore, the proceedings in Crime No.285 of 2017 on the file of Kothapet Police Station, Guntur Urban District, cannot be quashed, since the investigation is not yet completed as on the date of filing the petition and requested this Court to dismiss the criminal petition.
The allegations made in the report lodged by the second respondent with the police in brief are extracted hereunder, for better appreciation of the case:
"At present, I, my husband are staying at H.No.2996, 7th Phase, Mohali Punjab on Job. I have two children. My sister lavanya's daughter Sai Sravya POonnamudi is given under marriage to Tirumalasetty Sai Ram s/o Sambasiva Rao r/o Nehru Nagar on 05-02-2017. From the date of their marriage, Sai Ram and his father are speaking badly about my character and they are spreading rumors about my character before my relatives who resides at Sangam Jagarlamudi, and joint relatives; they also commented vulgarly to some of the posts put by me in social media. When I asked them as to why they are spreading rumours about me, they threatened me to see my end. Due to this I underwent so much of mental agony. Along with degrading my character they are also spreading rumours about my second marriage. They are abusing me as their wish. Sambasiva Rao is trying to move intimately at me. I request you sir to kindly take strict legal action against Sai Ram and his father Sambasiva Rao who are making me to undergo lot of Mental Agony."
The allegation that the petitioners started glib talk against the second respondent among the relatives both at Sangam Jagarlamudi and Nehrunagar and posted objectionable messages in social media. When the second respondent questioned about postings of such objectionable talk in social media, the petitioners threatened her with dire consequences, thereby, she was put to humiliation mentally. The petitioners assassinated the character of the second respondent and when questioned, they abused her in filthy language. It is alleged that the second respondent is moving closely with Sambasiva Rao and thereby, damaging the reputation of the petitioners.
The specific allegation that posting of glib talk in social media would attract an offence or not is a question to be decided after investigation. If, for any reason, any such glib talk is posted in the social media, it would not attract any of the offence, in view of the law declared by the Apex Court in Shreya Singhal vs Union of India1 wherein, Section 66A of the Information Technology Act, 2000, was struck down as unconstitutional. Therefore, even if the allegations pertaining to postings of glib talk in the social media is true, it is not an offence, as it is. However, spreading rumours and threatening to see her end would attract an offence punishable under Section 506 IPC.
Section 506 IPC deals with punishment for Criminal Intimidation and Section 503 IPC defined criminal intimidation as follows:
1 (2015) 5 SCC 1
"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation."
The allegations made in the complaint that the petitioners are threatening the second respondent to see her end, when she questioned as to why they are spreading rumours against her would constitute prima facie offences punishable under Section 506 IPC against these petitioners. Similarly, the allegations made in the complaint would also attract an offence prima facie punishable under Section 509 IPC.
The contention of the learned counsel for the petitioner for the offence punishable under Section 506 IPC is non-cognizable and that the allegations would not constitute offences punishable under Sections 354-D & 506 IPC, thereby, the offences allegedly committed by the petitioner punishable under Section 506 IPC cannot be investigated without permission of the Magistrate. But, this contention cannot be accepted for the reason that there is sufficient material to attract an offence prima facie. Though the offences punishable under Section 509 IPC is cognizable, when the allegations made in the report lodged with the police disclosed commission of both cognizable and non-cognizable offences, the investigating agency is competent to investigate into both cognizable and non-cognizable offences, without permission of the magistrate, as per Section 155(4) of Cr.P.C, which permits the
police to investigate into the cases relating to two or more offences, of which one is cognizable, the case shall be deemed to be cognizable case, notwithstanding that the other offences are noncognizable. When the police are vested with the power to investigate into both cognizable and non-cognizable offences, when the allegations made disclosed atleast one cognizable offence, the investigation cannot be quashed on the same ground that the investigating officer is incompetent to investigate into an offence punishable under Section 509 IPC without obtaining permission of the Magistrate.
The power of this Court under Section 482 Cr.P.C is inherent and notwithstanding anything contained in the provisions of Cr.P.C be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under Cr.P.C, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In State of Haryana v. Bhajan Lal2 this Court considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. This Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value 2 1992 Supp. (1) SCC 335
and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge.
In (Mrs.) Dhanalakshmi v. R. Prasanna Kumar and others3, the Supreme Court dealt with the scope of Section 482 of Cr.P.C and it reads as under:
"Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole.
If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. in that event there would be no justification for interference by the High Court.
The complaint was lodged on 10.10.2017 and the petition to quash the proceedings was filed on 16.10.2017 i.e. six days from lodging the complaint.
The learned Public Prosecutor for the State of Andhra Pradesh contended that the investigation is not yet commenced and at this stage, when no investigation is commenced, the proceedings cannot be quashed, based on the allegations made in the report lodged with the police alone, since the parties may not be in a position to disclose minute details in the First Information Report in detail. That is the reason for treating the First 3 AIR 1990 SC 494
Information Report as not substantive piece of evidence, while holding that then First Information Report is only an information to the police about commission of a cognizable offence to set the criminal law into motion and that the First Information Report need not disclose minute details and it is not an encyclopedia of facts. Hence, based on the allegations made in the complaint in the repot lodged, the Court cannot quash the proceedings when the investigation is not yet commenced, for the reason that the victim is not excepted to give details to understand either in First Information Report or any brief history given to the doctors. In Mukesh and others v. State for NCT of Delhi and others4, the Supreme Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case.
It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration.
ground alone cannot tilt the balance of the case in favour of the accused.
If, this principle is applied to the present facts of the case, lack of details regarding dates of commission of offences, time and place etc, is not a ground to quash the proceedings. In State of Haryana v. Bhajan Lal5 this Court considered in detail the scope of provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint which are mentioned supra.
In R.P. Kapur v. State of Punjab6, the Apex Court held as follows:
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;
(iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
In view of the guidelines laid down by the Apex Court in the 5 1992 Supp. (1) SCC 335 6 AIR 1960 SC 866
judgments referred supra, if the facts on its face value are taken into consideration, it constitutes an offence, prima facie if proved. The Court cannot interfere, except when the Court comes to a conclusion that it is an out come of abuse of process of law. Therefore, when the allegations made in the charge sheet disclosed commission of an offence punishable under the provisions of the Indian Penal Code, this Court cannot exercise its inherent power to quash the proceedings.
In State of Orissa v. Saroj Kumar Sahoo7, the Supreme Court had an occasion to deal with the scope of Section 482 and held that the inherent powers under Section 482 Cr.P.C should not be exercised by the High Court to stifle a legitimate prosecution. The Apex Court also held that the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.
The Supreme Court also held that there is no hard and fast rule laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. Further, it was also held that while exercising jurisdiction under Section 482 of Cr.P.C, it is not permissible for the court to act as if it was a trial Court.
facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
The Court can value the material and documents on record, but it cannot appreciate evidence. The Court can not record evidence to conclude whether the material produced is sufficient or not for convincing the accused. Therefore, the limited purpose of appreciating of facts is only to come to a conclusion, to proceeding against the accused for the alleged offence committed by the accused. Thus, the limited jurisdiction under Section 482 of Cr.P.C can be exercised only in exceptional circumstances. In Kurukshetra University And Anr. v. State Of Haryana And Anr8, the Supreme Court took a serious view about quashing the proceedings by the High Court while exercising power under Section 482 Cr.P.C and observed as follows:
"It surprises, us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the CrPC, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases."
8 AIR 1977 SC 2229
In view of the law declared by Apex Court, when investigation was not commenced, the Court cannot quash the proceedings, since complete material is not before the Court. Hence, in view of the judgments in Saroj Kumar Sahoo1 & Kurukshetra University2, the proceedings cannot be quashed at this stage.
In the present facts of the case, admittedly, investigation is not yet commenced, except registration of crime and issue of F.I.R against the petitioners. Therefore, applying the principles laid down in the above judgments, when the facts are incomplete and hazy, this Court cannot exercise power under Section 482 Cr.P.C and quash the proceedings.
In view of my foregoing discussion, I find no ground to quash the proceedings at this stage.
In the result, the criminal petition is dismissed. Consequently, miscellaneous applications pending if any, shall stand dismissed. No costs.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:16.11.2017 SP