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D. Rajagopala Rao Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 456 of 1959
Judge
Reported inAIR1960AP184; 1960CriLJ455
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 190(1), 435 and 561A
AppellantD. Rajagopala Rao
RespondentState of Andhra Pradesh
Appellant AdvocateAdavi Rama Rao and ;N. Krishnamurthy, Advs.
Respondent AdvocateR.V. Rama Rao, Public Prosecutor
DispositionPetition dismissed
Excerpt:
criminal - cognizance - sections 4 (1) (h), 190 (1) (a) and190 (1) ©, 435 and 561a of criminal procedure code, 1898 - party filed petition before magistrate to direct police to file charge-sheet against other person - magistrate directed party to file private complaint - party instead of filing complaint filed revision under section 435 before additional sessions judge (asj) - asj also additional district magistrate (adm) under government notification - adm transferred case to magistrate for disposal - validity of order challenged - facts in petition constituted information within meaning of sections 4 (!) (h) and 190 (1) (a) - adm entitled to take cognizance of case - held, order within jurisdiction and legal. - .....reads as follows :'in exercise of the powers conferred by sub-section (2) of section 10 of the code of criminal procedure 1898 (central act v of 1898) the governor of andhra pradesh. hereby appoints the persons posted as additional district and sessions judges in the districts of east godavari, krishna and guntur, by virtue of their office, to be additional district magistrates in their respective districts and directs that they shall exercise all the powers of a district magistrate under the said code and any other law for the time being in force.'5. it is, therefore, clear that the additional sessions judge of krishna is also an additional district magistrate and can exercise all the functions and discharge all the duties of a district magistrate. when an officer or authority has.....
Judgment:
ORDER

Seshachelapati, J.

1. This is a petition under Section 581A of the Cr. P. C. praying for the calling of the records pertaining to C. C. No. 58 of 1959, on the file of the Judicial Second Class Magistrate, Vijayawada Town and to quash all the proceedings as being illegal and without jurisdiction. The facts relevant to this case may be briefly stated :

2. The petitioner is the accused in the criminal case (C. C. No. 58 of 1959) now pending. It isalleged that on 22-8-1958 at about 7-30 P.M. while the wife of T. V. Nagabhushanarao was going along the road in Vijayawada town, some one is alleged to have snatched a gold chain from her neck and the jewel fell on the road. It is stated that the petitioner happened to be going along the road on his bicycle. T. V. Nagabhushana Rao suspected that! the petitioner was the thief and, therefore, took him to the police station at Vijayawada and made a report about the occurrence.

The police would appear to have made investigation and examined some witnesses. Eventually no action was taken by the police presumably on the ground that there was a mistake as to the identity of the thief and the case was treated as undetectable. Nagabhushana Rao. thereupon filed a petition before the Judicial Second Glass Magistrate Vijayawada Town requiring him to direct the police to file a charge-sheet The Magistrate however, by an order dated 26-11-58 directed the said Nagabhushana Rao to file a private complaint if he chose within 15 days from the date of the order.

Nagabhushana Rao did not, however, file any private complaint. But on the contrary, he filed a petition under Section 435 Cr. P. C. on 27-12-1958, in the Court of the Additional Sessions Judge, Masulipatam. On 3-1-1959, the Additional Sessions Judge passed an order taking the case on file under Section 379 I. P. C. and transferring it to the Court of the Judicial Second Class Magistrate Vijayawada Town for disposal according to law. It is this order dated 3-1-1959 and the proceedings now pending pursuant thereto that are sought to be quashed in this petition.

3. The powers of the High Court under Section 561A of the Code are indeed very wide. But they can only be exercised in cases where there is such a palpable want of jurisdiction in the proceedings initiated, as would result in unnecessary harassment and oppression to the accused concerned. Section 561A cannot normally be invoked to supplant the normal processes and enquiries by tribunals prescribed in pie Criminal Procedure Code.

4. It is obvious that if the order dated 3-1-1959 was passed by the Additional Sessions Judge in his capacity as Additional Sessions Judge, it would be palpably without jurisdiction. Section 193 of the Criminal Procedure Code enacts a clear embargo on any Court of Sessions taking cognizance of any offences as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. If the question had rested there, there would have been no doubt that the order dated 3-1-1959 is manifestly without jurisdiction. But in this case, the Additional Sessions Judge is also a Magistrate. By notification dated 20-3-1958, the Additional Sessions Judge of Krishna has also been appointed as an Additional District Magistrate. The Notification, reads as follows :

'In exercise of the powers conferred by Sub-section (2) of Section 10 of the Code of Criminal Procedure 1898 (Central Act V of 1898) the Governor of Andhra Pradesh. hereby appoints the persons posted as Additional District and Sessions Judges in the Districts of East Godavari, Krishna and Guntur, by virtue of their office, to be Additional District Magistrates in their respective districts and directs that they shall exercise all the powers of a District Magistrate under the said Code and any other law for the time being in force.'

5. It is, therefore, clear that the Additional Sessions Judge of Krishna is also an Additional District Magistrate and can exercise all the functions and discharge all the duties of a District Magistrate. When an officer or authority has two capacities and an order is made by the officer or the authority, it will be valid if it is referable to either of the calm-cities of the officer or the authority concerned. I do not, therefore, agree with the contention strongly pressed upon me by Sri Adavi Ramarao. that the order dated 3-1-1959 must be deemed to be an order passed by the Additional Sessions Judge as such and that it was also purported to have been passed under Section 435, Criminal Procedure Code.

On that assumption, it is further argued that if a revision petition is entertained under Section 435, Cr. P. C. the Additional Sessions Judge must act under Section 436 and direct the District Magistrate or any Magistrate subordinate to him to make a further enquiry into any complaint dismissed under Section 203 or Sub-section (3) of Section 204 or into the case of a person accused of an offence who has been discharged. In the view I have taken that the impugned order in this case is not one passed by the Additional Sessions Judge as such under Section 435, Cr. P. C. it is unnecessary to deal with this contention any further.

6. It is next contended by Mr. Rama Rao that even if the proceedings dated 3-1-1959 are to be construed as taking cognizance of the offence by the District Magistrate within the meaning of Section 190, the District Magistrate should have treated it as a case falling under Clause (a) of Section 190. Section 190 of the Criminal Procedure Code is in these terms : 'SECTION 190 :

1. Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and other Magistrate specially empowered in this behalf, may take cognizance of any offence --

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

2. The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under Sub-section (1), Clause (a) or Clause (b), of offences for which ho may try or commit for trial.

3. The State Government may empower any Magistrate of the first or second class to take cognizance under Sub-section (1), Clause (c) of offences for which he may try or commit for trial'.

7. The above section provides for three contingencies upon which the Magistrate may take cognizance of an offence. As pointed out by the Supreme Court in R. R. Chari v. State of Uttar Pradesh. : 1951CriLJ775 . the first contingency evidently is in respect of non-cognizable offences as defined in Criminal Procedure Code on the complaint of an aggrieved party. The second deals with a police report which evidently is a case of cognizable offence when the police have completed . their investigation and come to the Magistrate for the issue of process. The third is when the Magistrate himself takes notice of an offence and issues the process.

8. Mr. Rarnarao, has contended before me that the District Magistrate should have treated the same as falling within the meaning of Section 190(1)(a) and examined the complainant on oath. By not so doing the accused has lost the possible chance of the complaint being thrown out under Section 203 of the Criminal Procedure Code. In support of his contention, that the case should have been treated as if on a complaint, Mr. Rarnarao has referred me to two decisions of the Patna High Court in Jhuna Lal Sahu v. Emperor, AIR 1917 Pat 611 and Panu Samal v. Emperor, AIR 1940 Pat 111.

In the first case the facts were that pending a civil action for the recovery of a large amount of money, the defendant filed a petition before the District Magistrate stating that he suspected that the plaintiff had taken steps to abstract from the Court certain papers for the purpose of introducing forged entries. He did not ask the Magistrate to take action in the way of the issue of summons or warrants against the accused, but desired only that a confidential enquiry be made by the Criminal Investigation Department. As a result of the enquiry warrants were issued against certain persons. The matter was brought up in revision to the High Court. It was found that the written communication given by the defendant should be treated as a complaint within the meaning of Section 190(1) (a).

9. In the second case cited by the learned counsel there was a written protest made to the Magistrate by a person who lodged the first information with the Police and the learned Judges held that it was meant to be a complaint within the meaning of Section 190(1)(a) and should have been treated as such. I am unable to see that these cases have any direct bearing on the present question. Nagabhushana Rao did not purport to apply to the Magistrate for taking cognizance of the case or bring the matter up to his notice as Magistrate. He filed a criminal revision under Section 435 against the order of the Judicial 2nd Class Magistrate directing him to file a private complaint.

That revision petition was not meant to be a complaint within the meaning of Section 4(h) of the Criminal Procedure Code. The Additional Sessions Judge did not entertain the revision petition under Section 435, Cr. P. C. It must, therefore, be assumed that the facts contained in the revision petition constituted information within the meaning of Section 190(1)(e) and the District Magistrate was entitled to take cognizance of the case and transfer it under Section 193 for enquiry and trial to the Magistrate subordinate to him.

10. At this stage of the proceedings all that I am concerned with is whether the order passed on 8-1-1959 is void of jurisdiction so as to justify my quashing it in the manner prayed for. I am not persuaded that the order dated 3-1-1959 and the proceedings pursuant thereto are without jurisdiction so as to justify my intervention

11. In the result, the petition fails and is dismissed.


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