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R.V. Rama Rao Vs. State by Dy. S.P., Vizianagaram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 923 of 1956
Judge
Reported inAIR1959AP124; 1959CriLJ288
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 494; Madras District Police Act, 1859 - Sections 47 and 53
AppellantR.V. Rama Rao
RespondentState by Dy. S.P., Vizianagaram
Appellant AdvocateT.V. Sarma, ;V.V. Subba Rao and ;Y.V. Rao, Advs.
Respondent AdvocateD. Munikannaiah, Public Prosecutor
DispositionPetition dismissed
Excerpt:
criminal - taking out prosecution - section 498 (b) of criminal procedure code, 1898 and sections 47 and 53 of madras district police act, 1859 - assistant prosecutor filed memo stating that charge sheet was filed in court under mistaken view about jurisdiction - magistrate holding that he had no jurisdiction directed charge sheet to be returned - held, memo did not amount to withdrawal of prosecution. - - they clearly imply that he must have an intention not to prosecute the accused. 5. the next contention is that the petitioner's act complained of does not come within the purview of the madras district police act at all because that act is concerned with the duties of police officers as public servants and the taking of a briba has nothing to do with such duties......petitioner appeared before him on 20-2-1956 and there were a few adjournments. then the assistant public prosecutor appearing for the slate filed a memo, stating that the charge-sheet was filed in the court of the district magistrate, visakhapatnam, under a mistaken view of the law regarding jurisdiction, that the district magistrate had no local jurisdiction to try the case and that only the court at kurnool could have such jurisdiction.the petitioner contended contra, but the district magistrate made an order on 13-3-1956, holding that he had no jurisdiction to try the case and directing the charge-sheet to be returned under section 201, criminal procedure code, for presentation to the proper court. the charge-sheet was then laid before the stationary sub-magistrate, kurnool. who took.....
Judgment:
ORDER

Krishna Rao, J.

1. This is a petition filed under Sections 435 and 561A, Criminal Procedure Code, by the accused in C. C. No. 2497 of 1956 before the Stationary Sub-Magistrate, Kurnool, to quash those proceedings against him. The grounds urged for quashing are: (1) The prosecution is barred under Section 403, Criminal Procedure Code, as there was u previous acquittal of the petitioner for the same alleged offence under Section 47 of the Madras District Police Act, 1859; (2) The facts alleged against the petitioner do not come within the purview of the Madras District Police Act and therefore do not constitute an offence under Section 47; (3) The prosecution is barred by time under Section 53 of the Act.

2. The facts necessary for appreciating the contentions raised are briefly these; On 26-7-1955, the petitioner, who styles himself as the Secretary of the All India Citizens' Association, Vizianagaram, sent a petition to the Inspector General of Police, Andhra State, Kurnool, alleging that one Sri Lanka Satyam, Sub-Inspector of Police, Gajapathinagaram, was hushing up and suppressing cases after taking bribes. .

The petitioner requested in that petition immediate action against the Sub-Inspector. The Deputy Superintendent of Police, Vizianagararn enquired into that petition and came to the conclusion that the allegations against the Sub-Inspector were false and frivolous and were made maliciously and without probable cause. He therefore filed a charge-sheet under Section 47 of the Madras District Police Act, before the District Magistrate, Visakhapatnam, on 7-2-1956.

The District Magistrate took the case on his file as C. C. No. 27 of 1956 and issued summons to the petitioner. The petitioner appeared before him on 20-2-1956 and there were a few adjournments. Then the Assistant Public Prosecutor appearing for the Slate filed a memo, stating that the charge-sheet was filed in the Court of the District Magistrate, Visakhapatnam, under a mistaken view of the law regarding jurisdiction, that the District Magistrate had no local jurisdiction to try the case and that only the Court at Kurnool could have such jurisdiction.

The petitioner contended contra, but the District Magistrate made an order on 13-3-1956, holding that he had no jurisdiction to try the case and directing the charge-sheet to be returned under Section 201, Criminal Procedure Code, for presentation to the proper Court. The charge-sheet was then laid before the Stationary Sub-Magistrate, Kurnool. who took the case on file as C. C. No. 2497 of 1956.

3. The first contention of the learned counsel for the petitioner is that the case was withdrawn by the Assistant Public Prosecutor in the Court of the District Magistrate, Visakhapatnam and that the order of the District Magistrate, therefore, amounted to an acquittal of the petitioner, with the result that the trial before the District Magistrate had commenced before he passed the order on ,13-3-1956, because, the petitioner had appeared before him on 20-2-1956 and the case is a summons case. In Kandaswami Pillai v. Executive Officer, Panchayat Board, Attur, (1947) 1 Mad LI 172: (AIR 1947 Mad 306 (1)) (A), Yahya Alt J, said:

'As set out in Section 242, Criminal Procedure Code, the trial of a summons case begins when the accused appears or is brought before the Magistrate, and not when he is asked to show cause why DA should not be convicted'.

4. The real question is whether the memo filed by the Assistant Public Prosecutor before the District Magistrate amounted to a withdrawal of the prosecution. The memo, is not before me, but its contents have been summarised as mentioned above in the District Magistrate's order. Section 248, Criminal Procedure Code, would not apply be-cause even assuming that the charge-sheet was a complaint, the complainant was the Dy. Superintendent of Police, Vizianagaram and there was no withdrawal by him.

We have, therefore, to consider whether Clause (b) of Section 494, Criminal Procedure Code, applies and whether there was a wididrawal from the prosecution within the meaning of that section. The learned counsel relies on the decision in Velayudha Mudali, In re, 1948-2 Mad LJ 653 ; (AIR 1949 Mad 508) (B). But that was a case where the Public Prosecutor expressly applied under Section 494, Criminal Procedure Code, for permission to with draw the case.

The Public Prosecutor there also stated that the intention was to file separate prosecutions against the accused differently for various offences, Govinda Menon J., held that there was no provision in the Criminal Procedure Code similar to Order 23, Rule 1, Civil Procedure Code and therefore the grant of the permission for the withdrawal and the consequent discharge of the accused under Section 494(a), Criminal Procedure Code, amounted to art acquittal under Section 494 (b).

This decision was followed by Umamaheswararn J., in the case of Billa Masthan, In re, : AIR1955AP33 (C). The Assistant Public Prosecutor's petition there stated that the two charges which had been framed under Sections 408 and 477A, Indian Penal Code, should not be tried together and that fresh proceedings in respect of the offence under Section 477A might be permitted to be started. On the facts Umamaheswaram J., held that although the petition did not specifically refer to Section 494, Criminal Procedure Code, it must be regarded as having been made under that section.

In my opinion, these decisions do not apply to the facts here, because withdrawal from the prosecution contemplated by Section 494 implies a definite statement by the Public Prosecutor that he does not want to prosecute the particular case against the Licensed. The statement may be expressly made or inferred from the circumstances. Nevetherless the intention not to prosecute the particular case against the accused must be clear.

In the present case there was manifestly no such intention and the Assistant Public Prosecutor's memo, was merely a representation to the District Magistrate that he had no local jurisdiction -- a question which the District Magistrate was invited to decide. The learned counsel contend that the word 'withdrawal' means 'removal' and if a Public Prosecutor asks for a removal of the case from the file of a Court, there is a withdrawal within the meaning of Section 494.

But the words in Section 494 are that the Public Prosecutor has 'to withdraw from the prosecution. They clearly imply that he must have an intention not to prosecute the accused. It cannot be said, for instance, that even when a Public Prosecutor asks for a removal of the case by transferring it, there is 3 withdrawal under Section 494. I am, therefore, unable to agree that there was an implied acquittal by the District Magistrate, Visakhapatnam. It follows that the proceedings before the Sub-Magistrate, Kurnool, are not barred by Section 403, Criminal Procedure Code.

5. The next contention is that the petitioner's act complained of does not come within the purview of the Madras District Police Act at all because that Act is concerned with the duties of Police Officers as public servants and the taking of a briba has nothing to do with such duties. Reliance is placed on certain sentences taken out of context in two decisions. The following sentence in the judgment in Public Prosecutor v. Kola Sahib, 1942-1 Mad LJ 602: (AIR 1942 Mad 530) (D), is called in aid;

'The Act does not make provision for the filing of a false complaint against police Officers.'

6. But there Horwill, J., was considering the meaning of the clause 'anything done or intended to be done, under the provisions of the Act or under the provisions of any other law......' occurring in Section 53. The actual decision in the case is really against the contention of the petitioner, because the appeal against acquittal for an offence committed under Section 47 of the District Police Act by sending a false report against a Circle Inspector was allowed.

The learned counsel has also relied on the following sentence in Gurucharan Kaur v. Madras Province, 1942-2 Mad LJ 14: (AIR 1942 Mad 539) (E);

'The Police Act does not deal with administrative matters of the police as a department but with matters and duties which they in their official capacity are called upon to undertake and discharge.'

7. There the learned Judges were considering whether the words 'execute all orders' occurring in Section 21 in connection with the duties of police officers cover only orders affecting police officers inter se or also orders affecting private individuals,1There is no support for the view that making a false report alleging corruption does not come under Section 47 of the Act.

8. No doubt the words 'any false or frivolous charge against any Police Officer' occurring in Section 47 would not cover charges levelled against persons who happened to be police officers but relating purely to their situation as private individuals. The words should be construed consistently with the purpose of the Act. The purpose of the Act is as stated in the preamble to make the police force a more efficient instrument for the prevention and detection of crime, and to re-organize the Police force.

The false or frivolous charges must affect the police officer as an instrument for the prevention and detention of crime or as a member of the organization of the police force. But this does not help the petitioner here because an allegation of corruption against a police officer is obviously such a charge.

9. It is finally contended that as the date of the offence was 26-7-1955 and the charge-sheet was filed on 7-2-1956, the prosecution is barred under Section 53 of the Act. But Section 53 has no application at all, because it refers to actions and prosecutions.

'which may be lawfully brought for anything done or intended to be done under the provisions of this Act or under the provisions of any other law for the time being in force conferring powers on the police.'

The petitioner's act in sending the petition was not so done or anything intended to be done. The petition therefore fails and is dismissed.


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