Shaik Abdul Khader v. The State of A.P.

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(Prevention of Atrocities) Amendment Act, 2015, by deleting names of petitioners/A.2 and A.3. Vide Order dated 22.12.2017, the learned Special Judge took cognizance of the offences and issued process to the accused.

3. The allegations, in brief, are as follows. 2^ndrespondent herein (LW1) is husband of L.W.2- A.Amaravathi. He is son of maternal aunt of L.W.3- S.Venkata Subbaiah. Father of L.W.3-S.Venkata Subbaiah and his brothers gave some place to 2^nd respondent's mother by duly erecting a hut in it, in which maternal aunt of L.W.3-S.Venkata Subbaiah and her family lived for some period. When government sanctioned pucca building to them, they got constructed a house and lived in it. After demise of maternal aunt of L.W.3-S.Venkata Subbaiah and her husband, 2^nd respondent got demolished the same and started

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construction of house by encroaching two feet of their site. He did not heed to the request of L.W.3- S.Venkata Subbaiah and others to construct the house within his boundaries. He placed window exactly opposite to L.W.3-S.Venkata Subbaiah's door, and when asked by L.W.3-S.Venkata Subbaiah and others to remove the window, he stated that though he had no right over the said place, he would get the window constructed and further brought some papers and showed the same to them. Since L.W.3-S.Venkata Subbaiah and others were illiterates, they showed A.1 to read the papers and brought A.1 to their house on 12.08.2017, and after going through the papers, A.1 questioned 2^ndrespondent for constructing the window without any manner of right over it. On that, 2^nd respondent stated that everyone had become elders and abused A.1 for coming there as elder. Further, 2^nd respondent stated that he settled the matter. It is

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alleged that when 2^ndrespondent started his motorcycle along with wife, A.1 attacked on his neck and on that, 2^ndrespondent and his wife fell down. A.1 assaulted 2^nd respondent and abused him touching his caste and threatened to get his ration shop closed and would drive out him of the street. When L.W.2-wife of 2^ndrespondent intervened, A.1 pushed her aside.

4. Basing on a report lodged by 2^ndrespondent, the aforesaid case came to be registered. During the course of investigation, police found that A.2 and A.3 neither visited the scene nor abused 2^ndrespondent nor beat him, and it is A.1 that allegedly beat and abused 2^nd respondent in the name of caste. Police deleted names of petitioners/A.2 and A.3 and filed charge sheet against A.1 only stating that there is no incriminating material as against them. Thereafter, on the objections filed by 2^ndrespondent, the learned Special Judge had taken

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cognizance of the offences under Sections 323 and 506 IPC and 3 (1) (r) (s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, vide order dated 22.12.2017 and issued process as against the accused. Challenging the same, the present Criminal Petition came to be filed by petitioners/A.2 and A.3.

5. Heard the learned counsel for the petitioners and the learned Special Assistant Public Prosecutor appearing for 1^strespondent-State.

6. It is settled proposition that it is obligatory on the part of the learned Special Judge while taking cognizance that he has to apply his judicial mind on the material placed on record and has to come to a conclusion that there is sufficient material where cognizance can be taken of an offence as against the accused. The essential object of taking cognizance is that the learned

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Judge should be satisfied with the material placed before him and the learned Judge has to come to the conclusion that there is sufficient ground for proceeding as against the accused.

7. A perusal of the order dated 22.12.2017 passed by the learned Special Judge goes to show that there is absolutely no substance in the said order. Except stating that- 'taken on file for the offences mentioned therein and posting the case to 05.01.2018', the learned Special Judge has not stated anything beyond that. Under Section 190 CrPC, where the Magistrate is taking cognizance of an offence, he should be satisfied on perusing the documents placed before him, and after coming to the conclusion that there is prima facie case basing on the material placed before him, he has to issue process to the accused. Further, the Magistrate has to state against whom the process is being issued. In the

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case on hand, when office note was put up stating that the case may be taken on file against the accused Nos.1 to 3, except stating that taken on file under the Sections mentioned therein and posting the case to 05.01.2018, absolutely no reasons are assigned nor there is any material to show as to how the learned Special Judge came to the conclusion in issuing the process as against the petitioners herein/A.2 and A.3. The Order passed by the learned Special Judge is very vague and the same is not in accordance with law.

8. Learned counsel for the petitioners placed reliance on a decision of the Hon'ble Apex Court in Pradeep S.Wodeyar v. State of Karnataka, wherein it is held thus:

"80. In Sunil Bharti Mittal (supra), the case before this Court arose out of alleged irregularities in the grant of an additional Spectrum in 2002. The case was being monitored by this Court. The CBI registered a case and after completion of the investigation filed a charge-sheet in the court of the Special Judge. The CBI, among others, mentioned three telecom companies as accused persons in respect of offences under Section 13(2) read with 13(1)(d) of the PC Act and allied offences. When the matter was taken up for

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the issuance of summons to the accused persons, the Special Judge while recording satisfaction that there was enough incriminating material to proceed against the accused named in the charge-sheet also found that three individuals, namely, the CMD, MD and Director of the three telecom companies were an alter ego of the respective companies. While taking cognizance of the cases, summons were issued not only to the accused in the charge-sheet but to the aforesaid three persons as well. Two of them moved this Court. Justice A K Sikri, while speaking for the three judge Bench, held that before taking cognizance of an offence, the Magistrate should have applied his mind to the case to satisfy himself that the allegations would constitute an offence:

"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."

81. Justice Sikri observed that while the Magistrate is empowered to issue process against a person who has not been charge-sheeted, there has to be sufficient material in the police report showing his involvement. The Court held that no such exercise was carried out by the Special Judge and in its absence, the order summoning the appellants could not be sustained. The decision in Sunil Bharti Mittal (supra) arose out of a police report but clearly involved a situation where

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appellants had not been arraigned as accused in the charge-sheet. The Magistrate had issued summons to them merely treating them to be an alter ego of the company. This Court held that it was a wrong (and a 'reverse') application of the principle of alter ego and that the order summoning them could not be sustained.

82. In Mehmood Ul Rehman (supra), a complaint was filed by the Respondent under Section 500 of the Ranbir Penal Code (in pari materia to Section 500 of the IPC). The Magistrate passed the following order:

"4. […] Perused the complaint, and the statements recorded. In the first instance of proceedings, let bail warrant to the tune of Rs. 15,000/- be issued against the alleged accused persons, with direction to the accused persons to cause their appearance before this Court on 22-4-2007, to answer the material questions."

83. The Respondent filed a petition before the High Court seeking to quash the proceedings initiated by the Magistrate. The High Court rejected the petition. Before this Court, a contention was raised that the Magistrate had not applied his mind to the complaint to form an opinion on whether the allegations would constitute an offence. Relying on Pepsi Foods Ltd. (supra), it was observed that the Magistrate ought to have applied his mind to the allegations and must be satisfied that the facts alleged would constitute an offence. The order of the Magistrate was set aside by this Court on the ground that the order did not indicate an application of mind by the Magistrate. The facts in this case fall squarely within Section 190(1)(a) CrPC since the Magistrate was only guided by the complaint before him. Moreover, Justice Kurian Joseph, writing for the two-judge Bench has clearly taken note of the difference between Section 190(1)(a) and 190(1)(b):

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"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected.""

A perusal of the Order dated 22.12.2017 passed by the learned Special Judge goes to show that the Order is silent with regard to the aspect as to whether the learned Special Judge has satisfied that there is prima facie case as against the petitioners/A.2 and A.3 to proceed further by issuing process as against them. Further more, there is no material to show that the learned Special Judge issued process as against the petitioners/A.2 and A.3, except the office note put up by the Senior Superintendent.

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9. In view of the aforesaid facts and circumstances of the case, the Order dated 22.12.2017 passed by the learned Special Judge is set aside and the matter is remanded to the learned Special Judge for passing an order afresh in accordance with law, within a period of four weeks from the date of receipt of a copy of this Order.

10. Accordingly, the Criminal Petition is allowed. Miscellaneous Petitions, if any, pending shall stand closed.

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JUSTICE K. SREENIVASA REDDY

28.09.2022

DRK

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THE HONOURABLE SRI JUSTICE K. SREENIVASA

REDDY

CRIMINAL PETITION NO.4269 OF 2018

28.09.2022

DRK